Title: Volume FOIA 066

Release Date: 2014-03-20

Text: 21031

Volume 66 of 111
SJAR ROT
FOIA Version

VERBAT IM 1

RECORD OF TRIAL2

(and accompanying papers)

of
(Name: Last, First, Middie initiai) (Sociai Security Number) (Rank)
Headquarters and
Headquarters Company,
United States Army Garrison U-S- Army FCDIJC Ml/er: VA 22211
(Unit/Command Name) (Branch of Service) (Station or Snip)
By
GENERAL COURT-MARTIAL
Convened by Commander

(Titie of Con vening Authority)

UNITED STATES ARMY MILITARY DISTRICT OF WASHINGTON
(Unit/Command of Con vening Authority)

Tried at

Fort. Meade, MD on see below

(Piace or Piaces of Triai) (Date or Dates of Triai-9

Date or Dates of Trial:

23 February 2012, 15-16 March 2012, 24-26 April 2012, 6-8 June 2012, 25 June 2012,

16-19 July 2012, 28-30 August 2012, 2 October 2012, 12 October 2012, 17-18 October 2012,
7-8 November 2012, 27 November - 2 December 2012, 5-7 December 2012, 10-11 December 2012,
8-9 January 2013, 16 January 2013, 26 February - 1 March 2013, 8 March 2013,

10 April 2013, 7-8 May 2013, 21 May 2013, 3-5 June 2013, 10-12 June 2013, 17-18 June 2013,
25-28 June 2013, 1-2 July 2013, 8-10 July 2013, 15 July 2013, 18-19 July 2013,

25-26 July 2013, 28 July - 2 August 2013, 5-9 August 2013, 12-14 August 2013,

16 August 2013, and 19-21 August 2013.

1 insert ?verbatirri or ?surrimari'zeo? as appropriate. This form be used by the Army and Navy for verbatim records of triai

2 See inside back co ver for instructions as to preparation and arrangement.

DD FORM 490, MAY 2000 PREWOUS OBSOLETE Front Cover

21032

(A) 29 .March 2012/2 April 2012112 April 2012/17 April 12- defense notifications
and redactions
(B) J 7 April 2012/19 April 2012- Government Objections and Motions for
Protective Order
(C). 20 April 2012- Defense Replies
(15) Defense Mo.tion to Rec.onsJdei: Compel Discovery - Grand Jury (urischeduled)
c. Phase 2(b). Legal Motions, excluding Evidentiary Issues (10 May 2012- 8 June·

2012)

(1 ) Defense Motion to Dismiss All Charged
Offenses under 1 8 U.S.C. 793(e)
.
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(C) Reply: 30 May 2012
(D) Article 39(a): 6-8 Jlll!e 2012
(2) Defense Motion to Dismiss All Charged Offenses under 1 8 U.S.C. 1030(a)(1)
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(C) Reply: 30 May 2012
(D) Article 39(a): 6-8 June 2012
(3) Government Motion for Proposed Lesser Included Offenses
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(C) Reply: 30 May 2012
(D) Article 39(a): 6- 8 June 2012
(4) Defense Proposed Lesser Included Offense Instructions
(A) Filing: 10 May 2012
(B) Respor+se: 24 May 2012
(C) Reply: 30 May 2012
(D) Article 39(a): 6-8 June 2012

(5)

Defense Motion to Exclude Uncharged Misconduct (MRE 404(b))

(A)
(B)
(C)
(D)

Filing: 10 May 2012
Response: 24 May 2012
Reply: 30 May 2012
Article 39
. (a): 6�8 June 2012

(6) Updated Proposed Case Calendar
(A) Filing: 10 May 2012
. (B) Response: 24 May 2012
(C) Reply: 30 May 2012
(D) Article 39(a): 6-8 June 2012
3

21033

(7) Disclosure of Unclassified Results of 3 Damage Assessment Searches to Defense
in Response to the Court's Ruling, 30 March 2012
(A) Filing: 18 May 2012

(8) Disclosure under RCM 7 01 (g)(2) or MRE 505(g)(2 ) of all Information
(Unclassified and Classified) to the Court in Response to the Court's Ruling, 30 March
2012
(A) Filing: 18 May 2012

(9) Government Filing for In Camera Proceeding lAW MRE 505(i) with Notice to

Defense (if Privilege is Claimed) in Response to the Court's Ruling, 30 March 2012

(A)
(B)
(C)
(D)

Filing: 18 May 2012
Response: 31 May 2012
Reply: N/A
Article 39(a): 6-8 June 2012

(10) Witness Lists Exchanged (Based on Discovery Received)
(A) Filing: 18 May 2012
(B) Government Objections: 24 May 2012
(C) Reply: 31 May 2012
(D) Article 39(a): 6-8 June 2012
(11) Production of Compelled Discovery #1 - Classified and Unclassified.
(A) 13 July 2012
Phase 3. Evidentiary Issues not Involving Classified Information under MRE
505 (22 June 2012 - 20 Julv 2012)

d.

(1) Defense Motion to Coruliel Discovery #2
(A) Filing: 22 June-2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 18�20 July 2012
·

_

(2) Government Motion to Compel Discovery
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 18-20 July 2012
(3) Motions in Limine (Evidence Discovered to Date)
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 18-20 July 2012
4

21034

(4) Motions to Suppress
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 18-20 July 2012

(5)

Pre-Authenticate/Pre-Admit Evidence

(A)
(B)
(C)
(D)

Filing: 22 June 2012
Response: 6 July 2012
Reply: 11 July 2012
Article 39(a): 18-20 July 2012

(6) Requests for Judicial Notice
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 18-20 July 2012
(7) Privileges
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 18-20 July 2012
(8) Proposed Members Instructions for all Charged Offenses
(A) Filing: 22 June 20121
(B) Response: 6' July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 18-20 July 2012
·

(9) Compel Experts
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): ·18-20 July 2012
(1 0) Compel Witnesses
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 18-20 July 2012

1

Since these instructions depend on the outcome of the motions to dismiss in Phase 2, the United States

recommends scheduling this motion during Phase

3.

5

21035

(11) Defense Notice of Intent to Disclose Classified Information under MRE

505(h)(1 ) (For Discovery Received)

(A) Filing: 22 June 20122

(12) Article 1 3
(A) Filing: 15 June 20123
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39(a): 18-20 July 2012
(13) Speedy Trial, including Article 10
(A) Filing: 15 June 20124
(B) Response: 6 July 2012
{C) Reply: 11 July 2012
(D) Article 39(a): 18-20 July 2012
(14) Defense Notice of Plea/Forum
(A) Filing: 20 July 2012
e. Phase 4. Evidentiary Issues Involving Both Unclassified and Classified Information
under MRE 505 ( 3 August 2012 4 September 2012)5
-

(1) Motions in Limine (Classified Information not Previously Disclosed)
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(C) Reply: 22 August 2012
(D) Article 39(a): 29-3'1 August 2012

.

·

(2) Motions to Suppress (Classified
' Information not Previously Disclosed)
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(C) Reply: 22 August 2012
(D) Article 39(a): 29- 31 August 2012
·2

The defense should provide notice under MRE 505(h) when it files its witness list, so that the United

States may start evaluating the list and more efficiently process the request through relevant Original
Classification Authorities. If the privilege is required to be invoked, then this will proyide the United
States sufficient time to complete the necessary classification reviews, prior to Phase 4.
3

4



The filing date of one week earlier for the defe se motions is in accordance with their schedule to give

the United States the necessary time to respond.

The filing date of one week earlier for the defense motions is in accordance with their schedule to give

the United States the necessary time to respond.
5

This process will likely require the military judge to review classified information within a special

facility or under special handling procedures. Additionally, this process will likely take some time for the
military judge to make her rulings on all classified information evidentiary motions.

6

21036

(3) Pre-Qualify Experts
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(C) Reply: 22 August 2012
(D) Article 39(a): 29-30 August 2012
(4) Litigation Concerning MRE 505(h) and MRE 505(i)6
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(C) Reply: 22 August 2012
(D) Article 39(a): 29-31 August 2012

(5)

Production of Compelled Discovery for Defense Motion to Compel Discovery #2
or Production of Limited Discovery under MRE 505(g)(2) or (3) or Notification to Court of
Claim of Privilege under MRE 50S(c)
_ _

(A) Date: 17 August 2012
(6) Production of Compelled Discovery for Government Motion to Compel

Discovery

(A) Date: 3 August 2012
(7) Defense Additional Witness List in light of Information in Defense-Motion to .
Compel Discovery. Defense Notice of Intent to Disclose Classified Information underMRE
505(h) from Compelled Discovery #2.
(A) Date: 22 August 2012
·

f.

(8) Proposed Questionnaires
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(C) Reply: 22 August 2012
(D) Article 39(a): 29-31 August 2012 (Questionnaires to members upon approval)
(E) Completed Questionaire Due Date: 14 September 2012.
Phase 5. Miscellaneous Motions (1 September 2012 - 21 September 2012)

(1) Any Additional Motion that does not have ail Identified Deadline
(A) Filing: 7 September 2012
(B) Response: 14 September 2012
(C) Article 39(a): 20 September 2012
(2) Grunden Hearing for all Classified Information
(A) Filing: 7 September 2012
(B) Response: 14 September 2012
6

Government advised the Court will need 15 duty days to review discoverable material.

7

21037

(C) Article 39(a): 21 September 2012
(2) Voir Dire Questions, Flyer, Findings/Sentence Worksheet
(A) Filing for Court Review: 14 September 2012
(B) Article 39(a): 20 September 2012
h.

Phase6. Trial by Members (20 September 2012 - 12 October 2012)

(1) Article39(a) Voir Dire- 20 September 2012
(2). Voir Dire: 21 September 2012
(3) Trial: 24 September 2012- 12 October 2012

.

. .

-· .

8

21038

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
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)
)

DEFENSE REQUEST FOR
PARTIAL RECONSIDERATION
OF DISCOVERY RULING

DATED: 12 April 2012

RELIEF SOUGHT
1. The Defense respectfully requests that the Court reconsider, in part, its ruling on the Defense
Motion to Compel Discovery.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2), 905(f).
The burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1), 905(f).
ARGUMENT
3. In the Prosecution Response to Defense Motion to Compel Discovery (“Government
Motion”), the Government stated the following:
The United States is in the process of producing all discovered information
“relevant and necessary” to Defense’s request that the United States has authority
to disclose under federal rules. The United States disputes whether Defense
provided a specific request, and adequate basis, for its request for “any grand jury
testimony.” However, in an abundance of caution, the United States intends to
produce all grand jury materials, both classified and unclassified, that are
“relevant and necessary” and that the United States has authority to disclose under
the federal rules.
See Government Motion, p. 14. Presumably based on the Government’s representation, the Court
did not specifically address the grand jury testimony in its Ruling.

1

21039

4. The Defense requested clarification from the Government on what exactly it intended to
provide in regard to the grand jury materials. During an 802 telephonic conference, the
Government seemed to suggest that it would produce all relevant material from the grand jury
testimony. The Government explained that since there were some wholly irrelevant aspects to
the grand jury testimony, those portions of the grand jury testimony would not be provided. The
Government implied, however, that everything else would be provided. The Government
indicated that it would provide such grand jury testimony in accordance with the timeframe
established by the court (i.e. April 20).
5. Unfortunately, the Defense is still not clear on what exactly the Government was planning on
turning over. On 9 April 2012, the Defense sent an email seeking further clarification. The
email traffic reads as follows:
David Coombs: In your response to the Defense Motion to Compel Discovery, dated 8
March 2012, you stated “[t]he United States intends to produce all grand jury
materials, both classified and unclassified, that are ‘relevant and necessary’ and the
United States has authority to disclose under the federal rules.” During our last 802
conference you stated that you intending to provide the grand jury materials. Can you
provide me with an estimated time line for these materials? Thank you.
Ashden Fein: We are working to review this material along with the FBI case file. If
we find discoverable material, we will provide it to the defense as soon as possible once
we confirm that we have the authority to disclose. We estimate that we will complete our
review of any grand jury testimony in the next three weeks and intend to notify you of
any discoverable material by 1 May. Additionally, we hope to disclose any discoverable
material by 1 May as well.
David Coombs: I am not for sure I understand your response. What is the “discoverable
material” standard that you are using to determine what to disclose? Also, why do you
believe it would take until May 1st to complete your review? The Grand Jury
investigation started in December of 2010. At that time, the Defense requested access to
the investigation being conducted by the DOJ. Additionally, you have been on notice that
these materials were the subject of a compel discovery motion since February. I am not
clear on why the review hasn’t already been done, and why I don’t have these documents.
Ashden Fein: Material outside the possession of military authorities is discoverable
under RCM 701(a)(6) and Brady. The United States has provided the defense FBI and
grand jury material above and beyond this requirement and continues to review and
coordinate additional review of material, including testimony. This case was referred in
early February, and we have since been litigating this issue, which resulted in the United
States informing the Court and defense that we intend to produce, as soon as practicable,
any discoverable material we identify and have approval to make available. No later than
1 May is our best estimate considering the amount of information that the prosecution has
a due diligence requirement to review and which we have been and are continuing to
review.

2

21040

David Coombs: Can you provide me with the Bates numbers for any grand jury
testimony that have you provided to the Defense? Thank you.
Ashden Fein: We have not provided any grand jury testimony, only materials obtained
through the grand jury.
6. In the Defense’s opinion, it is still not clear what the Government will provide in relation to
the grand jury materials. However, it seems based on the latest representations of the
Government that not all relevant materials will be turned over. It only intends to disclose to the
Defense Brady material under R.C.M. 701(a)(6).
7. Consequently, the Defense requests that the Court order the entire grand jury proceedings in
relation to PFC Manning or Wikileaks to be produced to the Defense. Alternatively, the Defense
requests that the grand jury proceedings be produced for in camera review to determine whether
the evidence is discoverable under R.C.M. 701(a)(2) as being material to the preparation of the
defense.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

3

. 21041

11 April 2012

MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

l. I hereby certify that I have reviewed the following Defense motions for the presence of
classi?ed information:

a) Defense Response Motion to Prosecution?s Motion to Preclude Reference to Actual Harm

or Damage and
b) Defense Request for Partial Reconsideration of Discovery Ruling;

I do not believe that either of these motions contains classi?ed information or information that a
reasonable person could believe to be classi?ed

2. The point of contact for this memorandum is the undersigned at



CHARLES J. GANIEL
Command, SSO
HQ AT EC

21042

From:
To:
Cc:

Subject:
Date:
Attachments:

David Coombs
Lind. Denise R COL MIL USA OTJAG: Williams. Patricia CIV JFHO-NCR/MDW SJA: Jefferson. DaShawn MSG MIL
USA OTJAG
Fein. Ashden MAJ USA JFHO-NCR/MDW SJA: Overoaard. Anoel M. CPT USA JFHO-NCR/MDW SJA: Mon-ow III.
JoDean. CPT USA JFHO-NCR/MDW SJA: Whvte. Jeffrev H CFT USA JFHO-NCR/MDW SJA: VonElten. Alexander
S. ILT USA JFHO-NCR\MDW SJA: "Tooman. Joshua J CFT USARMY (US)'
Defense Motions
Thursday, April 12, 2012 11:30:23 AM
Def Response to Motion to Preclude.pdf
Def Response to Motion to Preclude.docx
Def Response to Motion to Preclude Redact.docx
Def Motion for Reconsideration - grand iurv.odf
Def Motion for Reconsideration - grand iurv.docx
Def Motion for Reconsideration - grand 1urv Redact.docx
Security Expert Review.odf

Ma'am,

The Defense has attached the following two motions:

1) Defense Response to Prosecution Motion to Preclude Reference to Actual Harm or Damage; and
2) Defense Request for Partial Reconsideration of Discovery Ruling

For each motion, the defense has attached a signed PDF version, a Word version, and a redacted Word
version with yellow highlights. The yellow highlights were used to assist the Government in its review
of the motions.

v/r
David

David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com

21043

^^^Confidentialityl^otice:This transmission, including attachments, may contain confidential attorney
clientinformation and is intended forthe person(s)or company named, tf you are not the intended
recipient, please notify the senderanddeleteall copies. Onauthori2:ed disclosure, copying or use of this
information ma^ be unlawful and is prohibited.^^^

21044

UNITED STATES OF AMERICA
v.
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

Prosecution Response
to Defense Request for Partial
Reconsideration of Discovery Ruling
17 April 2012

RELIEF SOUGHT

The prosecution respectfully requests that the Court deny Defense Request for Partial
Reconsideration of Discovery Ruling (hereinafter the "Defense Motion") because the rules of
discovery do not support the defense's request for either the production of all grand jury
proceedings in relation to the accused or WikiLeaks, or for in camera review of such materials
under the standard set forth in Rule for Courts-Martial (RCM) 701(a)(2).
BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the Defense bears the burden of persuasion and must prove any
factual issues necessary to decide this motion by a preponderance of the evidence. See Manual
for Courts-Martial, United States, Rule for Courts-Martial (R.C.M.) 905(c) (2008).
FACTS

The Army Criminal Investigation Command (CID), Federal Bureau ofinvestigation
(FBI), and Diplomatic Security Service (DSS) are the only law enforcement authorities that
participated in the joint investigation of the accused.
The FBI is a subordinate organization to the Department of Justice (DOJ). The FBI and
DOJ are not Department of Defense (DOD) agencies operating under Title 10 status or subject to
a military command.
The FBI files relating to the accused and WikiLeaks are classified. The DOJ files
relating to the accused and WikiLeaks are, at a minimum, law enforcement sensitive and contain
grand jury information. The prosecution has no authority to produce any FBI or DOJ files which
have not already been produced to the defense.
On 23 March 2012, the Court ordered that the prosecution has a due diligence obligation
to search, inter alia, the FBI files relevant to this case and to disclose to the defense that which is
discoverable under RCM 701(a)(6) and Brady.1 See Enclosure 1.

1

For purposes of this Response, Brady includes its progeny.

21045

WITNESSES/EVIDENCE

The prosecution does not request any witnesses be produced for this motion. The
prosecution requests that the Court consider the following enclosures to this motion in its ruling.
1. Ruling: Defense Motion to Compel Discovery, 23 March 2012 (Appellate Exhibit
XXXVI).
2. Attachment F to Defense Motion to Compel Discovery, 1 6 February 2012 (Appellate
Exhibit VIII).
3. Section V of Prosecution Supplement to Prosecution Proposed Case Calendar, 8
March 2012 (Appellate Exhibit XII) .
4. Memorandum, Task Force to Review Unauthorized Disclosure of Classified
Information (FOUO), Secretary of Defense Robert Gates, 4 August 2010.
LEGAL AUTHORITY AND ARGUMENT

The prosecution requests that the Court deny the Defense Motion because the rules of
discovery do not support the defense's request for either the production of all grand jury
proceedings in relation to the accused or WikiLeaks or an in camera review of such materials
under the standard set forth in RCM 701(a)(2) .
I:

RCM 701(a)(6) AND BRADY GOVERN DISCOVERY OF THE REQUESTED
GRAND JURY MATERIALS.

On 23 March 2012, the Court ordered that the prosecution bears an obligation to search
for, and disclose, information within the FBI file that is discoverable under RCM 70l(a)(6) and
Brady. See Enclosure 1, page 12 (''the Government will examine [the FBI files] for evidence
that is favorable to the accused and material to either guilt or punishment") .
RCM 70l(a)(6) provides that the prosecution shall, as soon as practicable, disclose that
which reasonably tends to negate guilt, reduce the degree of guilt, or reduce punishment. See
RCM 70l(a)(6) . RCM 70l(a)(6) implements the Supreme Court's decision in Brady. See
Williams, 50 M.J. at 441; see also Brady v. Maryland, 3 73 U.S. 83, 87 (1963) (the prosecution
shall disclose evidence favorable to the accused that is material to guilt or punishment) . The
prosecution bears an obligation to disclose to the defense any grand jury materials that are
discoverable under these rules.
RCM 701(a) (2) provides that, upon defense request, the prosecution shall permit the
defense to inspect materials ''within the possession, custody, or control of military authorities"
which are material to the preparation of the defense. See RCM 70l(a)(2). The FBI is a
subordinate organization to the DOJ, and neither organization is a DOD agency operating under
Title 1 0 status or subject to a military command. Thus, the FBI and DOJ files are not within the
possession, custody, or control of military authorities. RCM 701(a)(2) does not govern
discovery of such files, to include any grand jury materials contained therein. Grand jury
materials are only discoverable under RCM 701(a)(6) and Brady. This is consistent with the
existing Order. See Enclosure 1.
2

21046

The defense's request for the prosecution to produce the entire grand jury proceedings to
the defense is not supported by any rule of discovery or production. See RCM 70l(a)(6); see
also Brady,373 U.S. at 87; see also RCM 703(f) (relevant and necessary standard).
The defense's request for in camera review of such materials under the standard set forth
in RCM 701(a)(2) is without legal merit. The prosecution continues its search of the FBI file for
discoverable information under RCM 70l(a)(6) and Brady,the applicable rules of discovery for
material outside military authorities.
II:

THE PROSECUTION SUPPLEMENTS ITS RESPONSE TO THE DEFENSE
MOTION WITH THE FOLLOWING METHODOLOGY RELATING TO
OTHER GOVERNMENT ORGANIZATIONS.

In light of the numerous government organizations involved and to cure any confusion or
inconsistencies between the existing Court Order and the Defense Motion,the prosecution
proffers which materials should be subject to discovery under RCM 701(a)(2),which files of
government organizations the prosecution bears an obligation to search under Williams,and
which files of organizations the prosecution has an ethical obligation to search.
A. The Discovery Standard under RCM 701(a)(2) Applies to Files within the Possession,
Custody, or Control of Military Authorities For Which the Defense has Submitted a
Specific Request.
Information within the possession,custody, or control of military authorities and
specifically requested by the defense is discoverable, if material to the preparation of the defense.
See RCM 70l(a)(2). A specific request must provide ''the prosecutor notice of exactly what the
defense desires[.]" See United States v. Eshalomi, 23 MJ 12,22 (CMA 1 986) (citing United
States v. Agurs,427 U.S. 97, 106 (1976)). The prosecution proffers that DOD agencies
operating under Title 1 0 status or subject to a military command are "military authorities" under
RCM 701(a)(2). Thus,beyond the prosecution's own files and based on existing defense
requests,only the specifically-requested files of the following government organizations are
subject to review under RCM 701(a)(2) for discovery purposes:
(1) Army Criminal Investigation Command (CID). The primary law enforcement
organization within the Department of the Army focused on investigating the accused.
(2) Defense Intelligence Agency (DIA). An intelligence agency within the DOD which
operated the Information Review Task Force (IRTF),a DOD directed organization that "[led] a
comprehensive [DOD] review of classified documents posted to the WikiLeaks website [ ...],and
any other associated materials." See Enclosure 4.
The discovery standard under RCM 70l(a)(2) does not apply to the files of other DOD
agencies operating under Title 1 0 status or subject to a military command because the defense
has not made a specific request for any such files.

3

21047

B. The Court of Appeals for the Armed Forces in Williams Outlined the Scope of the
Prosecution's Duty to Search for Discoverable Information.
The prosecution shall search the following files for discoverable information: (1) the
files of law enforcement authorities that have participated in the investigation of the subject
matter of the charged offenses; (2) investigative files in a related case maintained by an entity
closely aligned with the prosecution; and (3) other files, as designated in a defense discovery
request, that involved a specified type of information within a specified entity. See Williams, 50
M.J. at 441. The prosecution proffers that, based on the date of this response, it shall search the
files of the following government organizations for discoverable information under each prong
of Williams.
Law Enforcement Authorities

The only law enforcement authorities that participated in the joint investigation of the
accused are as follows:
(1) CID. The primary law enforcement organization within the Department of the Army
focused on investigating the accused.

(2) FBI. The primary law enforcement organization within the DOJ, focused on
investigating matters related to the accused.
(3) Diplomatic Security Service (DSS). The primary law enforcement organization
within the Department of State (DOS), focused on investigating matters related to the DOS.
Closely Aligned Organizations

In addition to those above organizations, the prosecution proffers that only the following
government organizations qualify as entities closely aligned with the prosecution:
(1) DOS. The accused is charged with compromising the DOS's documents and the
prosecution intends to use additional information from the Department during its case-in-chief

(2) Government Agency. The accused is charged with compromising this Government
Agency's documents and the prosecution intends to use additional information from the Agency
during its case-in-chief
(3) Office of the Director of National Intelligence (ODNI)? The prosecution intends
to use information from this Department during its case-in-chief
(4) DOJ. The prosecution collaborated with the federal prosecutors within the DOJ
during the accused's investigation.3

2

The prosecution is only referring to the ODNI proper, and not its subordinate organizations.
4

21048

(5) DIA.4 The prosecution intends to use information from this Agency during its case­
in-chief
(6) Defense Information Systems Agency (DISA). 5 The prosecution intends to use
information from the Agency during its case-in-chief
(7) United States Central Command (CENTCOM).6 The accused is charged with
compromising the CENTCOM's documents and the prosecution intends to use additional
information from the command during its case-in-chief
(8) United States Southern Command (SOUTHCOM).7 The accused is charged with
compromising the SOUTHCOM's documents and the prosecution intends to use additional
information from the command during its case-in-chief
Specific Requests

In addition to those above organizations and their related Williams category, the
prosecution proffers that the defense submitted a request for a specified type of information only
within the Office of the National Counterintelligence Executive (ONCIX).8
C. In addition to the Search Requirements under Williams, the Prosecution has Sought
Additional Information that it Believes to be Brady Material under its General Due
Diligence Requirement.
In addition to the prosecution's discovery requirements under RCM 701(a)(2) , RCM
701(a)(6) , and Williams, the prosecution has an ethical obligation to search for potential Brady
material that the prosecution has a good faith basis may exist in certain entities. See US. Dep 't
of Army, Reg. 27-26, Rules of Professional Conduct for La-wyers R. 1.1, R. 1.3, R. 3.8(d) (1 May
3

The prosecution is only referring to Main Justice and the District Prosecution Offices, and not its
subordinate organizations.

4

This agency also falls within military authorities, pursuant to RCM 701(a)(2).

5

Id.

6

ld.

7

Id.

8

The prosecution and ONCIX are not closely aligned because they do not share a close working
relationship. The prosecution's relationship with ONCIX is limited to the organization's review of
certain classified information. The prosecution does not presently request reconsideration of the Court's
Order dated 23 March 2012, where the Court identified ONCIX as being closely aligned with the
prosecution, because the prosecution already bears an obligation to search the files of ONCIX based on a
specific defense request.

5

21049

1992) (AR 27-26). The prosecution has a good faith basis that the following government entities
(not closely aligned with the prosecution) possess material that could be discoverable under
RCM 701(a)(6) or Brady, and are not subject to a defense specific requests:
(1) Government Agency.
(2) United States Cyber Command.

9

(3) More than Fifty Government Organizations with Limited Involvement.
CONCLUSION

The prosecution respectfully requests that the Court deny the Defense Motion because the
rules of discovery do not support the defense's request for either the production of all grand jury
proceedings in relation to the accused or WikiLeaks or an in camera review under the standard
set forth in RCM 701(a)(2).

DENFEIN
MAJ< JA
Trial Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 17 April 2012.

ASHDENFEIN
MAJ, JA
Trial Counsel

9

This agency also falls within military authorities, pursuant to RCM 701(a)(2).

6

21050

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: DEFENSE MOTION
v. TO COMPEL DISCOVERY


MANNING, Bradley E., PFC
U-S- Army: -
Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer? DATED: 23 March 2012
Henderson Hall, Fort Myer, VA 22211

Defense moves the Court to compel discovery. Government opposes. After considering
the pleadings, evidence presented, and argument of counsel, the Court ?nds and concludes the
following:

Factual Findings:

1. In its Motion of 14 February 2012, the Defense moved the Court to compel the following
discovery from the Government IAW RCM 70l(a)(2) (Documents, tangible objects, and reports
within the possession, custody, or control of military authorities that is material to the
preparation of the defense), 701(a)(5)(Inforrnation to be offered by the Government at
Sentencing), 70l(a)(6)(Evidence favorable to the Defense) and 906(b)(7)(Motion for
Appropriate Relief regarding discovery and production of evidence). The Government response
is listed below each item:

a. FOIA Requests Regarding Video in Specification 2 of Charge II: A copy of any Freedom
of Information Act (FOIA) request and any response or internal discussions of any such FOIA
request that is related to the video that is the subject of Speci?cation 2 of Charge 11.

Government Response: On 3 October 201 1, the Government produced all enclosures to any
Freedom of Information Act (FOIA) response, specifically BATES 00000772-00000851. On 15
March 2012, the Government advised the Court it had given the Defense the information
requested.

b. Quantico Video: The video of PFC Manning being ordered to surrender his clothing at the
direction of CW4 James Averhart and his subsequent interrogation by CW4 Averhart on 18
January 2011. The Defense filed a preservation of evidence request over one year ago, on 19
January 201 1 for this information. The Defense alleges the Government produced the video of
PFC Manning being ordered to surrender his clothing, but not the video of the subsequent
interrogation by CW4 Averhart. The Defense alerted the Government to the need to locate the
additional video in a telephone conversation on 12 December 201 1. The Defense proffered that
the requested video is relevant to support the accused?s claim of unlawful pretrial punishment.
The Defense presented no evidence that the video exists.

APPELLATE EXHIBIT Xx 9 (St
I Page I ofPag?(s)

1 I 21051

Government Response: Upon Defense request, the United States preserved all
Quantico videos requested by Defense. On 6 December 2011, the United States produced all
videos of the alleged Quantico incident, speci?cally BATES 00408902-00408903. The alleged

video referenced by the Defense does not exist.

In an email to the Court dated 20 March 2012, the Defense accepted Trial Counsel?s
representation that the Government has provided the Defense with all videos provided to the
Government by Quantico.

c. EnCase Forensic Images: An Encase forensic image of each computer from the Tactical
Sensitive Compartmented Information Facility (T-SCIF) and the Tactical Operations Center
(TOC) of Headquarters and Headquarters Company (HHC), 2nd Brigade Combat Team (BCT),
10th Mountain Division, Forward Operating Base (FOB) Hammer, Iraq. On 30 September 2010
CID requested preservation of hard drives used during the 2d BCT deployment to Iraq. The
Defense submitted a preservation request for this evidence on 21 September 2011.

Government Response: On 21 September 2011 more than one year after the accused?s unit
redeployed back to Fort Drum, New York the Defense requested that the United States
preserve these hard drives. The Government identi?ed four commands or agencies that may
possess hard drives responsive to this request and submitted a Request to Locate and Preserve
Evidence to each command or agency. Those entities included: (1) 2d Brigade Combat Team,
10th Mountain Division 10 (2) the Federal Bureau of Investigation (3) Third
Army, United States Army Central and (4) the Computer Crime Investigative Unit,
U.S. Army Criminal Investigative Command (CCIU). The Government request to 2/10 MTN
yielded the preservation of 181 hard drives, of which the United States has identi?ed thirteen as
being located within the SCIF during the unit?s deployment to FOB Hammer. None of those
thirteen hard drives contained the ?bradley.manning? user pro?le. At the Article 39(a) session
on 15 March 2012, the Government advised there were 14 hard drives responsive to the Defense
discovery request. The Government argues the hard drives are not relevant and necessary for the
Defense under RCM 703(f) and that, because they are classi?ed, the rules of production under
MRE 505 should govern whether the images are discoverable.

d. Damage Assessments and Closely Aligned Investigations: The following damage
assessments and records from closely aligned investigations:

(1) Central Intelligence Agency: Any report completed by the WL Taskforce (WTF) and
any report generated by the WTF under the direction of former Director Leon Panetta.

(2) Department of Defense: The damage assessment completed by the Information

Review Task Force (IRTF) and any report generated by the IRTF under the guidance and
direction of former Secretary of Defense Robert Gates. Additionally, the Defense requests all
forensic results and investigative reports by any of the cooperating agencies in this investigation
(DOS, FBI, DIA, the Of?ce of the National Counterintelligence Executive (ONCIX), and the
CIA).



21052

(3) Department of Justice: Any documentation related to the DOJ investigation into the
disclosures by WikiLeaks concerning PFC Bradley Manning, including any grand jury testimony
or any information relating to any 18 U.S.C. 2703(d) order or any search warrant by the
government of Twitter, Facebook, Google or any other social media site.

(4) Department of State: The damage assessment completed by the DOS, any report
generated by the task force assigned to review each released diplomatic cable, and any report or
assessment by the DOS concerning the released diplomatic cables.

Government Response: The Government intends to disclose all relevant and necessary
classi?ed and unclassi?ed grand jury testimony that the Government is authorized under the
federal rules to the Defense. The Government: (1) con?rms the existence of completed WTF

and IRTF damage assessments; (2) con?rms the existence of a damage assessment by DOS that

is not complete; and (3) denies that ONCIX has produced an interim or ?nal damage assessment.
At the Article 39(a) session on 15 March 2012, the Government stated that it had no authority to
disclose or discuss the requested damage assessments. The Government argues that Defense has
not demonstrated that the damage assessments are relevant and necessary to an element of the
offense or a legally cognizable defense and otherwise inadmissible in evidence under RCM
703(f) because the Defense is confusing prospective OCA classi?cations determinations
assessing whether damage could occur (relevant to elements of charged offenses) with hindsight
damage assessments determining what damage did occur (not relevant to elements of charged
offenses). The Government further responded that it is unaware of any forensic results and
investigative reports from within the DOS, FBI, DIA, ONCIX, or the CIA, that contributed to
any law enforcement investigation.

2. The accused is charged with ?ve speci?cations of violating a lawful general regulation, one
speci?cation of aiding the enemy, one speci?cation of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight speci?cations of communicating
classi?ed information, ?ve speci?cations of stealing or knowingly converting Government
property, and two speci?cations of knowingly exceeding authorized access to a Government
computer, in violation of Articles 92, 104, and 134, UCMJ, 10 U.S.C. 892, 904, 934 (2010).

3. The Defense Motion to Compel the EnCase Forensic Images, the damage assessments from
WTF, IRTF, and DOS, and forensic and investigative reports from DOS, FBI, DIA, ONCIX, or
the CIA remain at issue.

4.The Defense submitted the following proffers of relevance and evidence in support of its
Motion to Compel:

EnCase Forensic Images: The Defense requested an EnCase forensic image of each computer
from the and the TOC of Headquarters and Headquarter Company, 2nd Brigade Combat
Team, 10th Mountain Division, Forward Operating Base Hammer, Iraq.

a. Proffer of relevance: The Defense proffers that an EnCase Image would allow its
forensic expert to inspect the 14 seized government computers from the and TOC. Such
inspection would allow the Defense to discover whether it was common for Soldiers to add
technically unauthorized computer programs to their computers and that the practice of the unit



21053

was to tacitly authorize that addition of unauthorized programs including but not limited to:
(a full featured Internet Relay Chat client for Windows that can be used to communicate,
share, play or work with others on IRC networks); Wget (a web crawler program designed for
robustness over slow or unstable network connections); GEOTRANS (an application program
which allows a user to easily convert geographic coordinates among a wide variety of coordinate
systems, map projections and datums); and Grid Extractor (a binary executable capable of
extracting MGRS grids from multiple free text documents and importing them into a Microsoft
Excel spreadsheet) to their computers. The Defense argues this information is relevant because
the Government has charged PFC Manning with adding unauthorized software to his government
computer in Speci?cations 2 and 3 of Charge The information is relevant to establish the
defense theory that the addition of software not on the approved list of authorized software was
authorized by the accused?s chain of command through the practice of condoning and implicitly
or explicitly approving the additions of such software.

b. Evidence: The Defense has provided the Court with a summary of what the defense
asserts the following witnesses deployed with the accused testi?ed to at the Article 32
investigation:

CPT Steven Lim Soldiers listened to music and watched movies on their
computers and saved music, movies, and games (unauthorized software).

CPT Casey Fulton Soldiers saved music games, and computers to their
computers. She added M-IRC Chat and Google Earth to her computer.

Mr. Jason Milliman Soldiers added unauthorized games and music to their
computers and was aware Soldiers were adding unauthorized software to their computers,
although he did not believe the practice was common.

CPT Thomas Cherepko He saw unauthorized music, movies, games, and
unauthorized programs improperly stored on the T-Drive. He advised his immediate supervisor
and the Brigade Executive Of?cer concerning the presence of unauthorized media on the T-
Drive.? Nothing was done.

Ms. Jihrleah Showman She and everyone else in the unit viewed M-IRC Chat as
mission essential and everyone put it on their computers.

Damage Assessments and Closely Aligned Investigations: The Defense requested the
following damage assessments and records from closely aligned investigations:

(1) Central Intelligence Agency: Any report completed by the WTF and any report
generated by the WTF under the direction of former Director Leon Panetta.

(2) Department of Defense: The damage assessment completed by the Information
Review Task Force (IRTF) and any report generated by the IRTF under the guidance and
direction of former Secretary of State Robert Gates. Additionally, the Defense requests all
forensic results and investigative reports by any of the cooperating agencies in this investigation
(DOS, FBI, DIA, the Of?ce of the national Counterintelligence Executive and the CIA).

(3) Department of Justice: The DOJ has conducted an investigation into the disclosures
by WikiLeaks as referenced by Attorney General of the United States Eric H. Holder. The
Defense requested any grand jury testimony and any information relating to any 18 U.S.C.

1 I 21054

2703 order or any search warrant by the government of Twitter, Facebook, Google or any
other social media site that was relevant to PFC Bradley Manning.

(4) Department of State: The DOS formed a task force of over 120 individuals to
review each released diplomatic cable. The task force conducted a damage assessment of the
leaked cables and concluded that the information leaked either represented low?level opinions or
was already commonly known due to previous public disclosures.

Proffer of Relevance for all Damage Reports: The Defense argues that evidence of
damage assessments (whether favorable or not) are material to the preparation of the defense for
the merits and sentencing IAW RCM 701(a)(2) and that, if the damage assessments are
favorable, they are also relevant, helpful to the defense, and discoverable under RCM 70l(a)(6)
and Brady v. Maryland, 373 U.S. 83 (1963). Even if the extent of actual damage caused by the
alleged leaks was not relevant to the merits, it is relevant discovery for the defense to prepare its
presentencing case.

Evidence: The Defense provided its 30 November 2011 request to the Article 32
Investigation Officer (IO) for the production of evidence to include the damage assessments.
That request includes the following:

a. 5 August 2010 creating the IRFT and 16 August 2010 letter from former
Defense Secretary Robert Gates to Senator Carl Levin discussing the IRTF.

b. 8 November 2010 message from former CIA Director, Leon Panetta to CIA
employees advising them that the Office of Security is directed to fully investigate the damage
from WL. 22 December 2010 Washington Post article stating that the CIA established the WTF
to assess the impact of exposure of thousands of leaked diplomatic cables.

c. 18 January 2011 Reuters article stating ?Internal U.S. govermnent reviews

have determined that a mass leak of diplomatic cables caused only limited damage to U.S.
interests abroad, despite the Obama administration?s public statements to the contrary?. The
article listed the sources as two congressional aides familiar with brie?ngs by State Department
officials and Congress. The article further went on to state ?National security officials familiar
with the damage assessments being conducted by defense and intelligence agencies told Reuters
the reviews so far have shown ?pockets? of short-term damage, some of it potentially harmful.
Long term damage to U.S. intelligence and defense operations, however, is unlikely to be
serious, they said.? And ?But current and former intelligence officials note that while WL has
released a handful of inconsequential CIA analytical reports, the website has made public few if
any real intelligence secrets, including reports from undercover agents or ultra-sensitive technical
intelligence reports, such as spy satellite pictures or communications intercepts.?

All forensic results and investigative reports by any of the cooperating agencies in this
investigation (DOS, FBI, DIA, the Office of the national Counterintelligence Executive and
the CIA).

Proffer of relevance: None

21055

Evidence: None

5. The Defense ?led discovery requests for the EnCase Images, damage assessments, and
forensic results and investigative reports by any of the cooperating agencies in the investigation.
On 13 October 2011, the Defense made a speci?c request for Brady material, identifying the
damage assessments. On 30 November 2011, the Government responded to the requests for the
damage assessments under Brady that the Government has no knowledge of any Brady material
in the possession of the CIA, Department of Defense, Department of Justice, or the Department
of States, and it would furnish such records if it became aware of them and that the Govermnent
did not have authority to disclose the damage assessments. At or near 15 December 2011, the
Government advised the Article 32 IO that the damage assessments were classi?ed, that the
Government does not have to discuss the substance of the damage reports, and that all but the
IRTF are not under the control of military authorities. On 31 January 2012, the Govermnent
responded to Defense Discovery Requests for damage assessments stating it would not provide
the damage requests because the defense failed to provide an adequate basis for its request and
that the Defense was invited to renew its request with more speci?city and an adequate basis for
the request.

6. On 21 March 2015, the Court required the Government to respond to the following factual
questions regarding each of the requested damage assessments. The Government response
follows the question.

QUESTIONS:

1. Is each in the possession, custody, or control of military authorities?
Government Response: -

a. Defense Intelligence Agency (DIA) and the Information Review Task Force
Yes, the classi?ed document itself is in the possession of military authorities however,
the document contains material from other Agencies and Departments outside the control of
military authorities. The military controls the document itself, but not all the information within
its four corners.

b. Wikileaks Task Force No.

c. Department of State (DOS) -DOS has not completed a damage assessment.

d. Of?ce of the National Counterintelligence Executive ONCIX has not
produced any interim or ?nal damage assessments in this matter.

2. If no, what agency has custody of each of the damage assessments?
Government Response:
WTF The Central Intelligence Agency has possession, custody, and control.

3. Does the Prosecution have access to the damage assessments?
Government Response:

a. DIA and IRTF- The prosecution was given limited access for the purpose of reviewing
for any discoverable material. The prosecution only has control of the information within the
document that is owned by the Department of Defense (military authority).

1 21056

b. WTF The prosecution was given very limited access for the purpose of reviewing for
preparation of the previous motions hearing. The prosecution will have future access to complete
a full review for Brady material, as outlined below.

4. Has the Prosecution examined each of the damage assessments for Brady material?
Government Response:
a. DIA and IRTF- Yes.
b. WTF -No.

4a. If yes, is there any favorable material?

Government Response:

DIA and IRTF- Yes; however, the United States has only found classi?ed information that is
"favorable to [the] accused that is to punishment." Cone v. Bell, 129 1769, 1772
(2009); see also Brady v. Maryland, 373 U.S. 83, 87 (1973). The United States has not found any
favorable material relevant to ?ndings.

4b. If no, why not?

Government Response:

WTF- The prosecution has only conducted a cursory review of the damage assessment in order
to understand what information exists within the Agency, and has not conducted a detailed
review for Brady material. This process is ongoing and the prosecution will produce all
"evidence favorable to [the]accused that is material to guilt or to punishment[]? if it exists, under
the procedures outlined in MRE 505, Cone v. Bell, 129 at 1772; see also Brady v.
Maryland, 373 U.S. at 87. Additionally, the United States is concurrently working with other
Federal Organizations which we have a good faith basis to believe may possess damage
assessments or impact statements, and will make such discoverable information available to the
defense under MRE 505.

END OF QUESTIONS

7. No head of an executive or military department or government agency concerned has claimed
a privilege to withhold classi?ed information IAW MRE 505(c).

The Law:

1. Defense discovery in the military justice system is governed by the Constitutional standards
set forth by the Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963) and recently
reaf?rmed in Smith v. Cain, (slip opinion 10 January 2012), Article 46, UCMJ (Opportunity to
Obtain Witnesses and Other Evidence), RCM 701 (Discovery), and, also, by RCM 703
(Production of Evidence) when the requested discovery is evidence not under the control of
military authorities. For classi?ed information, where the Government voluntarily agrees to
disclose classi?ed information in whole or in limited part to the accused, the provisions of MRE
505(g) apply. Where the Government seeks to use MRE 505 to withhold classi?ed information,
a privilege must be claimed IAW MRE 505(0). US. v. Schmidt, 60 M.J. (C.A.A.F. 2004).



1 21057

2. Brady requires the Government to disclose evidence that is favorable to the defense and
material to guilt or punishment. Favorable evidence is exculpatory and impeachment evidence.
Brady applies to classi?ed information. The Government must either disclose evidence that is
favorable to the defense and material to guilt or punishment, seek limited disclosure IAW MRE
505(g)(2), or invoke the privilege for classi?ed information under MRE 505(c) and follow the
procedures under MRE 505(t) and The classi?ed information privilege under MRE 505 does
not negate the Government?s duty to disclose information favorable to the defense and material
to punishment under Brady. The Government may provide the information to the Court and
move for limited disclosure IAW MRE 505(g)(2). If the privilege is claimed, MRE 505(i)
allows the Government to propose alternatives to full disclosure}

3. Trial Counsel have a due diligence duty to review the ?les of others acting on the
Government?s behalf in the case for favorable evidence material to guilt or punishment. The
scope of Brady due diligence is to examine ?les beyond the Trial Counsel?s ?les is limited to:

(1) the ?les of law enforcement authorities that have participated in the investigation of
the subject matter of the charged offense;

(2) investigative ?les in a related case maintained by an entity closely aligned with the
prosecution; and

(3) other ?les, as designated in a defense discovery request, that involved a speci?ed type
of information within a speci?ed entity.

For relevant ?les known to be under the control of another governmental entity, Trial
Counsel must make that fact known to the Defense and engage in good faith efforts to obtain the
material. US. v. Williams, 50 MJ. 436 (C.A.A.F 1999).

4. Article 46, UCMJ (Opportunity to obtain witnesses and other evidence) provides in relevant
part that trial counsel, defense counsel and the court?martial shall have equal opportunity to
obtain witnesses and other evidence in accordance with such regulations as the President may
prescribe.

5. The President promulgated RCM 701 to govern discovery and RCM 703 to govern evidence
production. The rules work together when production of evidence not in the control of military
authorities is relevant and necessary for discovery. US. v. Graner, 69 MI 104 (C.A.A.F. 2010).
The requirements for discovery and production of evidence are the same for classi?ed and
unclassi?ed information under RCM 701 and 703 unless the Government moves for limited
disclosure under MRE 505(g)(2) or claims the MRE 505 privilege for classi?ed information. If
the Government voluntarily discloses classi?ed information to the defense, the protective order
and limited disclosure provisions of MRE 505(g) apply. If, after referral, the Government
invokes the classi?ed information privilege, the procedures of MRE 505(f) and apply.

1 The parties have not presented the Court with any military cases directly on point. Cone v. Bell, 556 U.S. 449
(2009) does not address classi?ed information disclosures required by the Government under Brady. Federal courts
using the Classi?ed Information Procedures Act (CIPA) recognize that Brady requires disclosure of evidence by the
prosecution when it is both favorable to the accused and material either to guilt or punishment. See US. v. Hanna,
661 F.3d 271 Cir. 2011).



i . 21058

6. Relevant discovery rules in RCM 701(Discovery) are:

a. RCM 70l(a)(2) (Documents, tangible objects, reports) governs defense requested
discovery of evidence material to the preparation of the defense that is within the possession,
custody, or control of military authorities, whose existence is known or by due diligence should
be known by the Trial Counsel. The rule provides for such discovery after service of charges
upon the accused.

b. RCM 70l(a)(6) (Evidence favorable to the defense) codi?es Brady and provides that
the trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence
know to the trial counsel which reasonably tends to: (A) negate the guilt of the accused to an
offense charged; (B) reduce the degree of guilt of the accused of an offense charged; or (C)
reduce the punishment.

c. RCM 70l(f) provides that nothing in RCM 701 shall be construed to require the
disclosure of information protected from disclosure by the Military Rules of Evidence. RCM
70l(f) applies to discovery of classi?ed information when the Government moves for limited
disclosure under MRE 505(g)(2) of classi?ed information subject to discovery IAW RCM 701 or
when the Government claims a privilege under MRE 505(c) for classi?ed information.

d. RCM 70l(g) authorizes the military judge to regulate discovery. A military judge is
not detailed to a court-martial until charges are referred for trial (Article 26(a) UCMJ).

7. RCM 703 (Production of Witnesses and Evidence) states in relevant part:

a. RCM 703(f)(l) provides that each party is entitled to the production of evidence which
is relevant and necessary.

b. RCM 703(f)(4) provides that evidence under the control of the government may be
obtained by notifying the custodian of the record of the time, place, and date the evidence is
required and requesting the custodian to send or deliver the evidence. The custodian of the
evidence may request relief on the grounds that the order of production is unreasonable or
oppressive. After referral, the military judge may direct that the subpoena or order of production
be withdrawn or modi?ed. Subject to MRE 505 (Classi?ed Evidence), the military judge may
direct that the evidence be submitted for an in camera inspection in order to determine whether
relief should be granted.

8. Both the discovery rules under RCM 701 and the evidence production rules under RCM 703
are grounded in relevance. In order to have the military judge compel release of evidence either
as discovery under RCM 701 or as evidence production under RCM 703, the Defense must
establish that the evidence is relevant either to the merits or to sentencing, US. v. Graner, 69
104 (C.A.A.F. 2010).

9. Prior to referral, the Government may decline to disclose information requested by the
Defense IAW RCM 701 where the Government contests relevance and materiality. After
referral, RCM 70l(g) empowers the military judge to deny or regulate discovery to include

21059

requiring the Government to produce the requested discovery for in camera review. RCM
701(g) does not require the Government to produce all discovery requested by the Defense to the
Court for in camera review. As in this case, where the Government withholds discovery, the
Defense may move for a Motion for Appropriate Relief to Compel Discovery IAW RCM
906(b)(7) and, where classi?ed information is withheld by the Government, IAW MRE 505(d).
Upon such a motion and a suf?cient showing by the Defense of relevance and materiality, the
Court may require the evidence to be produced for in camera review.

10. If classi?ed discovery is at issue and the government agrees to disclose classi?ed
information to the defense, the military judge shall enter an appropriate protective order if the
government requests one IAW MRE 505(g)(1)or allow the Government to move for limited
disclosure under MRE 505(g)(2).

11. If classi?ed discovery detrimental to national security is at issue and the government does
not wish to disclose the classi?ed information in part or in whole to the defense, the government
must claim a privilege under MRE 505(c). There is no privilege under MRE 505 for classi?ed
information unless the privilege is claimed by the head of the executive or military department or
government agency concerned based on a ?nding that the information is properly classi?ed and
that disclosure would be detrimental to the national security.

12. MRE 505(e) (Pretrial Session) states in relevant part that after referral and prior to
arraignment any party may move for a session under Article 39(a) to consider matters relating to
classi?ed information in connection with the trial. Following such a motion or sua sponte the
military judge shall hold a session to establish the timing of requests for discovery, the
provision of notice under MRE 505(h), and the initiation of procedures under MRE 505(i). In
addition the military judge may consider any matters that relate to classi?ed information or that
may promote a fair and expeditious trial.

Analysis:

1. No government entity in possession of any discovery at issue has claimed a privilege under
MRE 505(c). Thus, Brady, RCM 70l(a)(2), 701(a)(6), and 701(g) govern discovery of both
classi?ed and unclassi?ed information. MRE 505(g) also applies when the Government
voluntarily discloses classi?ed information. RCM 703(f) requires that discovery of evidence
outside the control of military authorities be relevant and necessary.

2. The 14 hard drives for which the EnCase Images are requested are within the possession,
custody, or control of military authorities. Some of the information in the IRF damage
assessment is under the possession, custody, or control of military authorities. The DOS and
WTF damage assessments are in the possession, custody, and control of the Department of State
and the Central Intelligence Agency, respectively.

3. Because no privilege has been invoked under MRE 505(c) and the Government has not
moved for limited disclosure IAW RCM 505(g)(2), RCM 701(f) does not preclude disclosure of
classi?ed information that is material to the preparation of the defense under RCM 70l(a)(2) or
classi?ed information that is favorable to the defense under RCM 701(a)(6).

10

1 21060

4. Under Brady and RCM 701(a)(6), the Government has a due diligence duty to search for
evidence that is favorable to the defense and material to guilt or punishment. This includes a due
diligence to search any damage assessment pertaining to the alleged leaks in this case made by
the CIA, DOJ, and DOS. These agencies are entities closely aligned with the prosecution
in this case. The Government must disclose any favorable classi?ed information from the
damage assessments that is material to punishment, move for limited disclosure under MRE
505(g)(2), or claim the privilege IAW MRE 505(c).

5. The Government has examined the IRTF damage assessment and has found information
favorable to the accused that is material to punishment. The Court further ?nds that the IRTF
damage assessment is relevant and necessary for discovery under Brady and RCM 701(a)(6).

6. The Court ?nds that the WTF and DOS damage assessments may contain evidence favorable
to the accused that is material to punishment. The Court ?nds that these damage assessments are
relevant and necessary for the Government to examine for Brady material.

7. The Court ?nds all 3 damage assessments relevant and necessary for the Court to conduct an
in camera review to determine whether they contain information that is favorable to the accused
and material to punishment under Brady, whether they contain information relevant and
favorable to the accused under RCM 701(a)(6), and whether they contain information material to
the preparation of the defense under RCM 701(a)(2).

8. The Government has advised the Court it is ?unaware? of any forensic results or investigative
?les relevant to this case maintained by DOS, FBI, DIA, ONCIX, and CIA. These agencies are
closely aligned to the Government in this case. The Government has a due diligence duty to
determine whether such forensic results or investigative ?les that are germane to this case are
maintained by these agencies. The Government will advise the Court whether they have
contacted DOS, FBI, DIA, ONCIX, and CIA and that each of these agencies have stated to the
government that no such forensic results or investigative ?les exist.

9. The Court ?nds that a complete search of the relevant 14 hard-drives of computers from the
Tactical Sensitive Compartmented Information Facility (T-SCIF) and the Tactical Operations
Center (TOC) of Headquarters and Headquarters Company (HHC), 2nd Brigade Combat Team
(BCT), 10?? Mountain Division, Forward Operating Base (FOB) Hammer, Iraq is not material to
the preparation of the defense for speci?cations 2 and 3 of Charge IAW RCM 701(a)(2). At
least some of the information on the hard drives is classi?ed. The witnesses at the Article 32
investigation testi?ed that Soldiers would save unauthorized music, movies, games, and other
programs such as Google Earth and Chat. The Defense has evidence from the Article 32
witnesses to further the defense theory. Although a complete search is not material, the Court
will direct the Government to search each of the 14 hard drives Wget, M-IRC Chat, Google
Earth, movies, games, music, and any other speci?cally requested program from the Defense.
The Government will disclose the results of the search to the Defense under MRE 701(g)(l) and
505(g)(2). The Defense may renew its Motion to Compel Encase Forensic Images after receipt
of the results of the Government search.

11

21061

RULING: The Defense Motion to Compel Discovery is Granted in Part.

ORDER:

1. The Government will immediately begin the process of producing the damage assessments
that are outside the possession, custody, or control of military authorities IAW RCM
If necessary, the Government shall prepare an order for the Court to sign for each
custodian.

2. The Government will immediately cause an inspection of the 14 hard drives as provided in
paragraph (Analysis 9) above. On or before 30 March 2012, Defense will provide a list of

A additional terms the Defense wants the Government to add to its search of the 14 hard drives.



On or before 20 April 2012, the Government will provide the results of the search.

3. The Government shall contact DOS, FBI, DIA, ONCIX, and CIA to determine whether these
agencies contain any forensic results or investigative ?les relevant to this case. The Government
will notify the court NLT 20 April 2012 whether any such ?les exist. If they do exist, the
Government will examine them for evidence that is favorable to the accused and material to
either guilt or punishment.

4. By 20 April 2012 the Government will notify the Court with a status of whether it anticipates
any government entity that is the custodian of classi?ed evidence that is the subject of the
Defense Motion to Compel will seek limited disclosure IAW MRE 505(g)(2) or claim a privilege
IAW MRE 505(c) for the classi?cation under that agency?s control.

5. By 18 May 2012 the Government will disclose any unclassi?ed information from the 3
damage assessments that is favorable to the accused and material to guilt or punishment and
provide any additional unclassi?ed information from the damage assessments to the Court for in
camera review IAW RCM 701(g)(2).

6. By 18 May 2012 the Government will identify what classi?ed information from the 3 damage
reports it found that was favorable to the accused and material to guilt or punishment. By 18
May 2012 the Government will disclose all classi?ed information from the 3 damage
assessments to the Court for in camera review IAW RCM 70l(g)(2) or, at the request of the
Government, in camera review for limited disclosure under MRE 505(g)(2). By 18 May 2012, if
the relevant Government agency claims a privilege under MRE 505(c) and the Government

seeks an in camera proceeding under MRE 505(i), the Government will move for an in camera
proceeding IAW MRE 505(i)(2) and (3) and provide notice to the Defense under MRE



COL, JA
Chief Judge, 15? Judicial Circuit

So ORDERED: this 23rd day of March 2012.

21062

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221 1

DATED: 13 May 201 1

UNITED STATES
DEFENSE DISCOVERY
v. REQUEST

MANNING, Bradley PFC
US. Army,




1. In accordance with the Rules for Courts-Martial and the Military Rules of Evidence,
Manual for Courts-Martial, United States, 2008, Article 46, Uniform Code of Military
Justice, and other applicable law, request for supplemental discovery is hereby made for
the charged offenses in the case of United States v. Bradley E. Manning.

2. The defense requests that the government continue with its obligation to provide
discovery in response to each item listed in its previous discovery requests on 29 October
2010, 15 November 2010, 8 December 2010, 10 January 2011, and 16 February 2011 and
to also respond to the below requested discovery.

3. The defense requests that the government produce any and all documents (sworn or
signed statements, photographs, emails tangible items (books, papers, and
reports (investigative summaries, damage assessments, Original Classi?cation Authority
(OCA) determinations, etc.,) conducted by the United States Army, the Department of
Defense. the Department of Justice, the National Security Agency, the Defense
Intelligence Agency, the Department of Homeland Security Office of Intelligence and
Analysis, the Central Intelligence Agency, the Federal Bureau of Investigation, and the
Bureau of Diplomatic Security (DS). The trial counsel, upon defense request, has an
affirmative obligation to seek out requested evidence that is in thepossession of the
government even if that evidence is not already in the immediate possession of the trial
counsel. United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999); United States v.
Bryan, 868 F.2d 1032, 1036 Cir. 1989); United States v. Brooks, 966 F.2d 1500, 1503
(1992) (the government is considered to have possession of infomiation that is in the
control of agencies that are ?closely aligned with the prosecution?).

4. The defense requests any Brady material in the government?s possession. Brady v.
Maryland, 373 U.S. 83 (1963) (holding that due process requires the government to turn
over exculpatory evidence in its possession). The defense also requests any Jencks
material in the goverrunent?s possession. Jencks v. United States, 353 U.S. 657 (1957)
(holding that, in a criminal prosecution, the government may not withhold documents
relied upon by government witnesses, even where disclosure of those documents might
damage national security matters). Speci?cally, the defense requests copies of all
statements, oral or written, by any witnesses. The defense also requests any evidence in



i 21063

Defense Discovery Request PFC Bradley E. Manning

the government?s possession that contradicts or is inconsistent with the government?s
theory of the case.

5. The defense requests that the government inform the defense counsel if it does not
intend to comply with any speci?c provision of this request.

6. It is understood that this is a continuing request.

7. A copy of this request was served on Trial Counsel by e?mail on 13 May 2011.

DAVID EDWARD COOMBS
Civilian Defense Counsel

21064

STA
T0
v. PRESERVE
MANNING, Bradley PFC

US. Army,

Headquarters and llearlq uarters (jiompany, US.
Army (iarrison, lnint Base Hall.
Fort Myer, A 22211

DATED: 21 September 201

accordance with the Rules for Courts-Martial (R.C.M. 70 (at) and Manual for
Courts-Martial. United States. 2008. Article 46. Uniform Code of Military Justice, and
other applicable law. defense counsel in the above entitled ease request that
the US. preserve all computer forensic evidence obtained in this case.

2. The Defense speci?cally requests that the Government preserve all the hard drives
from the Tactical Sensitive ompartmented lnfortnation Facility and the
Tactical Operations Center of Headquarters and Headquatter C"ompan_v (HHC).
2nd Brigade Combat Team 10th Mountain Division. Forward Operating Base
(FOB) Hammer, Iraq and provide an LinC:-use Forensic image of each computer to the
defense for its inspection. The defense also requests an EnC?-ase forensic image of any
other eonrputer seized. by the Governrnent in this case.

3. In accordance with 70l(c), ?[e]ach party shall have equal opportunity to
inspect evidence.? Defense counsel is requesting an equal opportunity to inspect the hard
drives from the and TOC 2nd Mountain Division. FOB
l~I-ammer, Iraq. The defense lneliex-"es the requested evidence constitutes Brady material
under Bmd_}= v. 373 (L8. 83 (W63).

4. A copy ofthis request was served on Trial Counsel by e-mail on 21 September
201 l.

Civilian Defense Counsel

21065

UNITED STATES
DEFENSE DISCOVERY
REQUEST

MANNING, Bradley E.. PFC
U.S. Army.
Headquarters and I-leadquarters Company, US.

Amty Garrison. Joint Base Myer-l lenderson Hall,
Fort Myer, VA 22211

DATED: 13 October 201



1. In accordance with the Rules for Courts-Martial and the Military Rules of Evidence, Manual
for Courts-Martial. United States. 2008. Article 46, Uniform Code of Military ustiee. and other
applicable law, request for discovery is hereby made for the charged offenses in the ease of
United States v. Bradley E. Manning.

a. A copy of any adverse administrative or action, all supporting documentation, and any
rebuttal materials to such action based upon the 15-6 investigation conducted by L'l'(i Robert I.
Caslen Jr. or any other govemmental investigation. with regards to any individual that was the
subject ofsuch an adverse action in relation to the alleged leak ofclassi?ed information in this
case. The request includes. but is not limited to, the following individuals: COL. David M.
Miller, COL Paul R. Walter, I.TC Brian D. Kerns, LTC Rodney Gar?eld, LTC Randolph
Wardle, MAJ Eric Davis. MAJ F.ric Graham. MAJ Jason A. Morrow, MAJ Clifford D. Clattsen,
MAJ Elijah A Dreher, CPT Matthew W. Freeburg. ISG Eric H. Usbeck. CPT Thomas M.
Cherepko, CPT Steven J. Lim, CPT Barclay D. Keay, l"l' Casey Martin, 1LT Tanya M. Gaag.
ll.T Elizabeth A. Fields, CW2 Joshua D. Ehresman. CW2 (Thad liztstep, CW2 Alfred Lyons,
W01 Kyle J. Balonek. SFC Paul D. Adkins, SSG Lawrence W. Mitchell, SPC Daniel W.
Padgett. and PFC Jirlealt W. Sltowrnan.

b. An inspection of all seized governmental computers from the Tactical Sensitive
Compartmented lnformation Facility IF) and Tactical Operations Center of
Headquarters and He:-tdqtiarters Company (HHC). 2nd Brigade Combat Team (BCT), 10
Mountain Division, Forward Operating Base (FOB) Hammer. Iraq for the presence of any and all
unauthori/.cd computer programs to include. but not limited to: (a full featured Internet
Relay (.?hat client for Windows that can be used to communicate. share, play or work with others
on IRC networks); Wget (a web crawler program designed for robustness over slow or unstable
network connections); an application program which allows a user to easily
convert geographic coordinates among a wide variety of coordinate systems. map projections
and datums): and Grid Extractor (a binary executable capable of extracting MGRS grids from
multiple free text documents and importing them into it Microsoft Excel spreadsheet).

c. The defense requests any Brady material in the governments possession. Brady v.
373 83 (1963) (holding that due process requires the government to turn over exculpatory
evidence in its possession). 'l he defense also requests any Jenc/cs" material in the govemmenfs

. . 21066

Defense Discovery Request PFC Bradley E. Manning

possession. v. 353 US. 657 i957) (?holding that. in a criminal
prosecution, the government may not withhold documents relied upon by government witnesses.
even where disclosure of those documents might damage national security matters). The defense
specitically requests the following information:

i) White llouse: any report or recommendation concerning the alleged leaks in this case by
Mr". Russell Travers, National Security Staffs Senior Advisor for Information Access and
Security Policy. Mr. Travers was tasked to lead a comprehensive etifiort to review the alleged
leaks in this case. Any and all documentation related to President Barack H. Obama?s order for
an investigation and a government wide?review ofhow agencies safeguard sensitive information.
Additionally, any and all documents related to the steps the administration is considering
regarding these leaks and the nature of the criminal investigation underway into how the
documents were made public as referenced by former White House Press Secretary Robert
Gibbs. Any assessment given, or discussions concerning, the disclosures by any
member of the government to President Obama. Any e?mai1, report, assessment, directive, or
discussion by President Obama to the Department ol? Defense. Department of State or
Department of Justice;

i_i) Presidenfs intelligence Advisory Board: any report or recommendation concerning the
alleged leaks in this by Chairman Chuck Hagel or any other member of the Intelligence
Advisory Board;

Central Intelligence Agency: any report, damage assessment or recommendation by the
Wikileaks Task Force or any other CIA member concerning the alleged leaks in this case. Any
internal or external memorandums addressing the investigation of Bradley
Manning or the nature ol"the Office ofSecurity?s investigation into these matters;

iv) Department of Defense: All forensic results and investigative reports by the Department
ot'Del?ense regarding the information obtained by Wiltileaks and the results of any joint
investigation with the Federal Bureau of Investigation (FBI) as 1?clercnced by Former Secretary
of Defense Robert M. Gates. Additionally, any specific damage assessment by the Depanment
ot?Defense regarding the disclosure of classified documents and videos, the subject of this case,
by Wilresponsible for leading a comprehensive Department l? Defense review ofclassilied documents
obtained by the Wikileaks website and any other associated materials;

v) Department ofiustiee: Any and all documentation related to the Department of Justice
investigation into the aileged leaks by WikiL.ealUnited States Eric I-I. i-?lolder;

vi) Department of State: Any and all documentation relating to a review of the alleged leaks
in this case and any speci?c damage assessment by the Department of State regarding the
disclosure of diplomatic cables. the subject ofthis case, by Wikileaks;

21067

Defense Discovery Request PFC Bradley E. Manning

vii) Office of the Director of l\iational Intelligence (ODNI): Any and all documentation
relating to any review or damage assessment conducted by ODNI or in cooperation with any
other government agency;

Other Government intelligence Agencies: Any and all documents relating to any task
force or other governmental intelligence agency reyiew of the various alleged leaks in this case
to include. but not limited to. any damage assessment based upon the alleged leaks or any
corrective action taken by the United States Governinent due to the alleged leaks; AND

ix) House of Representatives: Results of any inquiry and testimony taken by House of
Representative oversight committee led by Representative Darrell Issa. The committee
discussed the actions of the actions of Attorney General Eric Holder, and t.he
investigation of PFC Bradley Manning.

d. The defense requests a copy ofthe Preliminary Inquiry Report. According to Department of
Defense 5105.2} once an SCI Security Official determines that a security violation
has occurred._ the SCI Security Official must report the violation within 72 hours ofdiseovery to
the appropriate Senior Officials of the Intelligence Community (SOIC) or Senior Intelligence
Officer (810).

e. The defense requests a copy of the Damage Assessment ofCo1nprornised lnforntation that is
required to be submitted to the Special Security Officer (SSO) under Dot.) once an
SCI Security Official determines that a security violation has occurred. The damage assessment
is supposed to contain the date of the assessment; the name and office symbol conducting the
assessment: subject/title, date, number. originator and original classification of document;
whether the document can be declassified or downgraded. either in whole or in part; justification
for classification (the specific statements in the document which are classified. the basis for
classification. and a complete bibliography of all classified source materials used in preparation
of the document); whether the classified information identified is accurate; whether the classified
information identified was the subject of any official release; and whether the information
identified as classified can be edited for the purpose of prosecution.

f. The defense requests a copy ofthe final security violation investigation report submitted to the
SSO Defense Intelligence Agency tIf)lA) under Doll 5105.21-M-l. The report is used to
assess intent. location of the incident. risk of compromise. sensitivity of information. and
mitigating factors in arriving at a final analysis ofthe incident.

g. A copy of all SCI security ntanagement and self?inspection reports for the of HHC.
2nd BCT, 10 Mountain Division, FOB Hammer, Iraq.

2. The defense requests that the governmc_nt informs the defense counsel if it does not intend to
comply with any specific provision of this request.

3. It is understood that this is a continuing request.

?.44

1 21068

Defense Discovery Request . PFC Bradley 15. Manning

4. copy ofthis request was served on Trial Counsel by email on 13 October 2011.

MA

D: ID EDWARD
Civilian Defense Counsel



21069

UNITED STATES

DEFENSE DISCOVERY
v. REQUEST

MANNING, Bradley E., PFC

U.S. Army,

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

DATED: 15 November 2011



1. In accordance with the Rules for Courts-Martial and the Military Rules of Evidence, Manual
for Courts-Martial, United States, 2008, Article 46, Uniform Code of Military Justice, and other
applicable law, request for discovery is hereby made for the charged offenses in the case of
United States v. Bradley E. Manning.

2. The Defense requests that the Government respond to each item listed in its previous
discovery requests and to also respond to the following additional discovery:

a) Whether any NIPR or SIPR computer within the 2d BCT T-SCIF or Supply Annex required
an end-user to have their ID CAC Card in the computer;

b) The required log-in procedure for use of the HP laptop, touch smart TS2, serial number


c) All NIPR and SIPR logs for any computer within the 2d BCT T-SCIF from 1 November 2009
to 27 May 2010;

d) An EnCase forensic image of any computer seized by the govemment and all other
information relied upon by the govermnent to claim information leaked to Wikileaks was
obtained by any terrorist group such as Al-Qaeda or Hizb-L Islami Gulbuddin

e) A current curriculum vitae for each forensic expert who has worked on this case for the
government;

0 Any classification review and damage assessment for documents related to Speci?cation 8
and 9 of Charge 11;

g) Any classi?cation review and damage assessment for the document related to Speci?cation
15 of Charge 11.

3. The Defense requests that the Government provide notice in writing if it does not intend to
comply with any specific provision of this request.

4. It is understood that this is a continuing request.

21070

Defense Discovery Request PFC Bradiey E. Manning

5. A copy of this request was served on Trial Counsei by email on 15 Nevember 2011.

DAVID EDWARD COOMBS
Civilian Defense Counsel

UNITED STATES
DEFENSE DISCOVERY
v. REQUEST

MANNING, Bradley E., PFC

U.S. Anny,

Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221

DATED: 16 November 201



1. In accordance with the Rules for Courts-Martial and the Military Rules of Evidence, Manual
for Courts-Martial, United States, 2008, Article 46, Uniform Code of Military Justice, and other
applicable law, request for discovery is hereby made for the charged offenses in the case of
United States v. Bradley E. Manning.

2. The Defense requests that the Government respond to each item listed in its previous
discovery requests and to also respond to the following additional discovery:

a) An EnCase forensic image of any computer seized by the government and all other
information relied upon by the government to claim information alleged to have been disclosed
in this case was in the possession of an unauthorized individual in December of 2009 (according
to the Government, this individual was a representative of WikiLeaks);

b) Any damage assessment or review completed in this case either by or with the assistance of
the Defense Intelligence Agency, the Office of the National Counterintelligence Executive or

any other governmental agency;

3. The Defense requests that the Government provide notice in writing if it does not intend to
comply with any speci?c provision of this request.

4. It is understood that this is a continuing request.

5. A copy of this request was served on Trial Counsel by email on 16 November 201 l.


DAVID EDWARD COOMBS
Civilian Defense Counsel

21071

21072

Preservation Request, datedl4June 2011). Afierreviewingtensof^thousandsofpagesof
documents fiom multiple federal organizations pursuant to these requests, trial counsel are
confident that other analytic products produced within the intelligence community contain
references to infbrmation otherwise "owned" by other organizations within the intelligence
community; therefore, any productionofthis material will likely take time to coordinate because
ofall the parties involved.
V^

ORIGINALCLASSIEICATION AUTHORITIES

1. As discussed above, the case involves multiple federal organizations becauseoffhescaleof
fhe alleged disclosuresofclassified infbrmation. These organizations fall within the three
categories below. Ifafederal organization contains an ^^^^^ next to its name, the United States
anticipates that documents originathigfi^om that federal organization will contain in^rmation
fiommultipleOCAs.
A.
evidence.

Federal organizations with equities in charged documents or digital fbrensic

(1)
(2)
(3)
(4)
(5)
(6)
(7)

DepartmentofState^
OfficeoftheDirectorofNational Intelligence
Defense In^rmation Systems Agency
United States Central Command
United States Southem Command
Govermnent Agency^
United States Cyber Command

B.
Other federal organizations with equities, but not in charged document or digital
^rensic evidence.
(1)
(2)
(3)
(4)
C.

Federal Bureauoflnvestigation
Govemment Agency^
DepartmentofDefense^
Defense Intelligence Agency^

Other federal organizations that have very limited mvolvement

2. The United States estimates that any Court orderto disclose classified inl^rmation.will likely
require coordination with multiple federal organizations in categoriesfDand (2), and roughly
estimates forty-^ve to sixty days to a^^essively coordinatearesponse across all equity holders.
Within the sixty daywindow,it would likely take approximately one to two weeks to identify
equity holders and distribute the product amongst the relevant federal organizations and their
OCAs. Thirty days to analyze the product foidentifythesourcesof classified infbrmafion and
evaluate the levelofprotection that must be given to that infbrmation. Two additional weeks ^ r
the OCAs to coordinatearesponse, fbr example to approve full disclosure. limited disclosure,
some variation, or invoke the privilege. Ifan OCA invokes the classified infbrmation privilege,
it may take additional time to conductaclassification review and route the document to the

21073

UNITED STATES OF AMERICA

Prosecution Response

V.

to Defense Request for Partial
Reconsideration of Discovery Ruling

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Enclosure 4
17 April 2012

APPELLATE E X H l B I T j i l
PAGE REFERENCED:
PAGE
OF
PAGES

21074

O02 8 lO CID2 2 1 10 11T
UNCLASSIFIED.A'FOR OFFICIAL USE ONLY
SECRETARY OF DEFENSE
lOOO DEFENSE PENTAGON
WASHINGTON, DC 20301-1000

^yg

g ggjg

MEMORANDUM FOR SECRETARIES OF THE MILIT.ARY DEPARTMENTS
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
UNDE R SECRETARIES OF DEFENSE
ASSISTANT SECRETARIES OF DEFENSE
GENERAL. COUNSEL OF THE DEP.ARTMENT OF DEFENSE
DIRECTOR, OPERATIONAL TEST AND EVALUATION
DIRECTOR, COST ASSESSMENT AND PROGRAM
EVALUATION
INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE
ASSISTANTS TO THE SECRETARY OF DEFENSE
DIRECTOR, ADMINISTRATION AND MANAGEMENT
DIRECTOR, NET .ASSESSMENT
DIRECTORS OF THE DEFENSE AGENCIES
DIRECTORS OF THE DOD FIELD ACTIWIES
Subject: Task Force to Review Unauthorized Disclosure of Classified Information (FOUO)
(U/lfOXJO) On July 28, 2010,1 directed the Director, Defense Intelligence Agency
(D.1A) to establish an InformatioQ Review Task Force (IRTF) to lead a comprehensive
Department ofDefense (DoD) review of classified documents posted to the WikiLeaks
•website (www.-wikileaks.org) on M y 25,2010, and any other associated materials.
Department ofDefense Components should provide DIA any assistance required to ensnra
the timely completion of the review.
(U ''/FOUO) The IRTF will review the impact of the unauthorized disclosure of
classified information specified above. The IRTF will coordinate throughout the
Intelligence Community in conducting this time-sensitive review and integrate its efforts
. with those ofthe National Counterintelligence Executive.
(U/,TOUO) The IRTF will provide regular updates to the Office of the Secretary of
Defense (OSD) on its findings. A more comprehensive interim repon will be provided as
the effort progresses. That report will include the following items:
• (U.//FOUO) Any released information with immediate force protection inwHcations;
• (U/zTOUO) .Any released infomjation concerning alhes or coalition partners that may
negatively impact foreign policy;
OSD 09134-10

(U/'/FOUO) Any military plans;

HiIN1m IHIIH
»

o

UNCLASSIFIED//FOR OFFICIAL USE ONLY

LAW ENFORCEMENT SBISmVE
ManningB_00024349

21075

OOP 8 ] 0 C/D2 2 7 7 0 117
U'NCI ASSIFIED/./FOR OFFICIAL USE ONLY

• (LV/FOUO) Any iatdligeace reporting;
• (LV/FOUO) Any released information concerning intelligence sources or methods;
• (U//EOUO) Any information oa civilian casualties not previously released;
• (U/'/'FOUO) Any derogatory comments regardii^ Afghan culture or Islam; and
• (U/'/FOUO) Any related datatiiatmay have also have been released to WikiLeaks,
but not posted.
A final report will be produced once all documents are assessed.
(U//FOUO) The RTF is the single DoD organization with authority and responsibility to
conduct the DoD review regarding this unauthorized disclosure. By separate tasking, I am
directing USD(I) lo conduct an assessment of the Department's procedures for accessing
andfransportingclassified iriformation.
(U//FOUO) This review is separate &om, and unrelated to, any criminal investigation of
the leaked information. The assessment and review of the leaked documents is not intended
to, and shall not limit in any way, the ability ofDepartment, Federal Bureau oflnvestigation
or any other federal criminal investigators, trial counsel and prosecutors to conduct
investigative and trial proceedings in support of possible prosecutions under the UniSann
Code of Military Justice or federal criminal provisions.

'^^ujfngzz;
cc:
Director ofNational Intelligence
Director, Central Intelligence Agency
.Assistant Secretary of State for Intelligsnce & Research
National Counterintelligence Center

UNCLASSIFIED/FOR OFFICIAL USE ONLY

LAW ENFORCEMENT SENSmVE
ManningB_00024350

21076

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)

DEFENSE REPLY TO
PROSECUTION RESPONSE
TO DEFENSE REQUEST FOR
PARTIAL RECONSIDERATION
OF DISCOVERY RULING
18 April 2012

RELIEF SOUGHT
1. In accordance with the Rules for Courts-Martial (R.C.M.) 701(a)(2), 701(a)(6), and 905(f),
Manual for Courts-Martial (M.C.M.), United States, 2008; Article 46, Uniform Code of Military
Justice (UCMJ); and the Fifth and Sixth Amendments to the United States Constitution, the
Defense respectfully requests that the Court reconsider, in part, its ruling on the compelled
discovery. Specifically, the Defense requests that this Court find that the grand jury materials
are in the possession, custody and control of military authorities within the meaning of R.C.M.
701(a)(2) and order them to be produced to the Defense, or for in camera review.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2), 905(f).
The burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1), 905(f).
FACTS
3. In the absence of knowledge to the contrary, the Defense adopts as true the Government’s
statements about the involvement of various agencies in this case. Thus, there are at least three
type of entities involved in this case that are relevant for the purpose of this motion:
a)
b)
c)

Military organizations/entities;
Entities that participated in a joint investigation;
Other “closely aligned” agencies.

Based on the Prosecution’s Response to Defense Request for Partial Reconsideration of
Discovery Ruling [hereinafter “Government Response”], the Defense has organized these
agencies accordingly:
1

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a) Military Organizations/Entities
Army Criminal Investigation Command (CID). The primary law enforcement
organization within the Department of the Army focused on investigating the accused.
Defense Intelligence Agency (DIA). An intelligence agency within the DOD which
operated the Information Review Task Force (IRTF), a DOD directed organization that
“[led] a comprehensive [DOD] review of classified documents posted to the WikiLeaks
website […], and any other associated materials.”
Defense Information Systems Agency (DISA)
United States Central Command (CENTCOM) and United States Southern
Command (SOUTHCOM)
b) Joint Investigations
FBI. The primary law enforcement organization within the DOJ, focused on
investigating matters related to the accused.
Diplomatic Security Service (DSS). The primary law enforcement organization within
the Department of State (DOS), focused on investigating matters related to the DOS.
c) Closely Aligned Organizations
Department of State. The accused is charged with compromising the DOS’s documents
and the Government intends to use additional information from the Department during its
case-in-chief.
DOJ. The Government collaborated with the federal prosecutors within the DOJ during
the accused’s investigation.
Government Agency. The accused is charged with compromising this Government
Agency’s documents and the Government intends to use additional information from the
Agency during its case-in-chief.
Office of the Director of National Intelligence (ODNI). The Government intends to
use information from this Department during its case-in-chief.
ONCIX. The Government disputes that ONCIX is closely aligned. Government
Response, p. 5, fn 8. The Court found in its ruling that ONCIX is a closely aligned
agency. See Ruling: Defense Motion to Compel Discovery, p. 11, paras. 4, 8.

2

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4. The Government is resisting producing the grand jury testimony under R.C.M. 701(a)(2) on
the following basis:
the FBI is a subordinate organization to the DOJ, and neither organization is a
DOD agency operating under Title 10 status or subject to a military command.
Thus, the FBI and DOJ files are not within the possession, custody, or control of
military authorities. RCM 701(a)(2) does not govern discovery of such files, to
include any grand jury materials contained therein. Grand jury materials are
only discoverable under RCM 701(a)(6) and Brady.
Government Response, p. 2.1
5. Over a month ago, the Defense predicted this latest tactic by the Government to deny
discovery:
The Government has not once in the past year and a half objected to any of the
Defense’s discovery requests on the basis that the information sought is not in
the “possession, custody, or control of military authorities.” Rather, the
Government has simply said that the requests were not specific enough or that it
did not believe the material was relevant or necessary under R.C.M. 703. In the
event that the Government now switches its “game plan” to deny discovery, it
should be estopped from arguing that any of the Defense’s requested
information is not in the “possession, custody, or control of military
authorities.”
Reply to the Defense Motion to Compel Discovery, p. 8, fn. 8. Not surprisingly, now that the
Government’s previous attempts to deny discovery to the Defense have failed, the Government is
raising for the first time the argument that the requested files are not within the possession,
custody or control of military authorities. The Defense would ask that the Court view with
skepticism the bona fides of the Government’s latest attempt to deny discovery to the Defense.
In short, the Government has resisted producing this evidence on various bases: that the request
was not specific enough, that there was no adequate basis for the request, that much of the
material was classified, etc. See Government Response to Defense Motion to Compel
Discovery, p. 14. Now that the Government has lost all those battles, it seeks to erect a new
obstacle for the Defense: that even though the FBI participated in a joint investigation of the
accused and even though the Government has ready access to this material, such material is not
in the possession, custody and control of military authorities.

1

The Defense would point out that the Government’s statement is plainly wrong on its face. Even if the materials
were not discoverable under R.C.M. 701(a)(2)—which the Defense submits that they are—the materials would be
discoverable under R.C.M. 703, and not only under R.C.M. 701(a)(6)/Brady. Since the issue here does not turn on
the scope of the Government’s Brady search, but rather on whether the grand jury materials are in the possession,
custody and control of military authorities for purposes of R.C.M. 701(a)(2), the Defense will not respond
specifically to the Government’s outline of what it believes its Brady responsibilities to be. The Defense reserves
the right, if necessary, to challenge the Government’s submissions in this respect at a later time.

3

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ARGUMENT
6. The Government acknowledges that the FBI in this case participated in a joint investigation of
the accused. It also acknowledges that the DOJ is closely aligned, in that “The Government
collaborated with the federal prosecutors within the DOJ during the accused’s investigation.” Id.
p. 4. In such circumstances—where the requested discovery is in the possession of an entity that
conducted a joint investigation or an entity that is closely aligned with the prosecution—the
discovery is deemed to be in the “custody, control, or possession” or military authorities within
the meaning of R.C.M. 701(a)(2).
7. R.C.M. 701(a)(2)(A) provides that, upon request of the Defense, the Government shall permit
the Defense to inspect:
Any books, papers, documents, photographs, tangible objects, buildings, or
places, or copies of portions thereof, which are within the possession, custody,
or control of military authorities, and which are material to the preparation of
the defense or are intended for use by the trial counsel as evidence in the
prosecution case-in-chief at trial, or were obtained from or belong to the
accused.
(emphasis added). The Government believes that because the FBI and the DOJ are organizations
not subject to a military command, then the requested materials are not within the possession,
custody, or control of military authorities. See Government Response, p. 2 (“the FBI is a
subordinate organization to the DOJ, and neither organization is a DOD agency operating under
Title 10 status or subject to a military command. Thus, the FBI and DOJ files are not within the
possession, custody, or control of military authorities.”). The rule does not speak to whether
other organizations such as the FBI and DOJ are under military control. Rather, it speaks to
whether the books, papers, documents, etc. are within the “possession, custody or control” of
military authorities. Thus, the Government misses the critical question posed by the rule: What
materials are considered to be in the “custody, possession or control” of military authorities?2
8. Whether a document is in the “possession, custody or control” of military authorities is a legal
question, not a factual one. See United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995)
(“issue involves a legal determination of the meaning of ‘in the possession of the government.’”).
What items are legally considered to be in the “possession, custody or control” of military
authorities appears to be a question of first impression in military courts.3 However, the issue
has arisen in federal courts under Federal Rule of Criminal Procedure 16, the federal court
equivalent to R.C.M. 701(a)(2). See Drafter’s Analysis, Manual for Courts–Martial, Rule 701
Discovery (“(a) Disclosure by the trial counsel. This subsection is based in part on Fed. R. Crim.
2

The Government seems to believe that the relevant question is “What are military authorities?” See Government
Response, p. 3 (“The prosecution proffers that DOD agencies operating under Title 10 status or subject to a military
command are ‘military authorities’). No one is disputing what military authorities are; the Defense is arguing that
certain material, to include the grand jury transcript, is within the “custody, possession or control” of military
authorities within the meaning of R.C.M. 701(a)(2).
3
The Defense suspects that the reason this issue has not been litigated is not because the issue is novel, but because
military prosecutors are encouraged not to play games with discovery, and thereby routinely turn over to the
Defense all the evidence which the Defense requests and to which the prosecutors have access.

4

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P. 16(a), but it provides for additional matters to be provided to the defense. … [R.C.M.
701(a)(2)] parallels Fed. R. Crim. P. 16(a)(1)(C) and (D)”); United States v. Stone, 40 M.J. 420,
423 n.1. (C.M.A. 1994) (when discussing R.C.M. 701(a)(2), noting that “a similar right to
discovery [is] provided in Fed. R. Crim. P. 16….”). Rule 16(a)(1)(C) reads as follows:
Upon request of the defendant the government shall permit the defendant to
inspect and copy or photograph books, papers, documents, photographs, tangible
objects, buildings or places, or copies or portions thereof, which are within the
possession, custody or control of the government, and which are material to the
preparation of the defendant’s defense or are intended for use by the government
as evidence in chief at trial, or were obtained from or belong to the defendant.
Fed. R. Crim. P. 16(a)(1)(C)(emphasis added). Thus, the language of the two rules is identical,
except that the federal rules use the term “government” instead of “military authorities.” The
term “government” under Rule 16 is synonymous with “prosecution” or “trial counsel.” See
United States v. Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997)(“Binding precedent has construed
the term ‘government’ in Rule 16(a)(1) to refer to the “defendant’s adversary, the prosecution,’
given the ‘repeated references to the attorney for the government in 16(a)(1)(A), (B) and (D) and
16(a)(2),’ and language in 16(a)(1)(C) referring to papers and documents ‘intended for use by the
government as evidence in chief at the trial.’”). Thus, under Rule 16, the prosecution has the
obligation to turn over specifically requested items in “the government’s” (i.e. prosecution’s)
possession, custody and control. R.C.M. 701(a)(2) is intended to be analogous. See Drafter’s
Analysis, Manual for Courts–Martial, Rule 701 Discovery (“[R.C.M. 701(a)(2)] parallels Fed. R.
Crim. P. 16(a)(1)(C) and (D)”). The difference is that R.C.M. 701(a)(2) is intended to be broader
than its federal counterpart, in that it requires that the Government turn over not only evidence
which is within trial counsel’s control, but also in the control of military authorities generally.4
However, the key under both of these rules is determining when a given item is considered to be
within a prosecutor’s “custody, possession or control.” Since military courts have not addressed
this issue directly, federal court precedent is instructive in determining how the phrase “custody,
possession or control” under R.C.M. 701(a)(2) should be interpreted.
A.

Federal Precedent on the Meaning of “Possession, Custody and Control”
i) Documents are in the “Possession, Custody or Control” of the Government where the
Prosecution has Knowledge of, or Access to, the Documents

9. A number of federal courts have accepted that documents are in the “possession, custody or
control” of the government for the purposes of Rule 16 where the prosecution had knowledge of,
or access to, the documents in question.
10. In United States v. Libby, 429 F. Supp. 2d 1 (D.D.C. 2006), for instance, the defendant
sought documents that were not in the physical possession of the prosecutor. Rather, they were
4

To avoid confusion, it is helpful to read R.C.M. 701(a)(2) as referring to matters within the custody, possession, or
control of either trial counsel or military authorities. In this way, it parallels Rule 16, except that it allows for more
generous disclosure, in that in includes items within military control as well.

5

21081

in the physical possession of the White House, more specifically the Office of the Vice President
(“OVP”) and/or the CIA. The prosecution resisted producing these documents on the basis that
they were not in the custody, possession or control of the government within the meaning of
Rule 16:
The Special Counsel, however, posits that his office is not obligated, under Rule
16, to search for discoverable documents in the OVP or at the CIA. With regard to
the CIA, the Special Counsel contends that the agency did not participate in the
grand jury investigation that led to the indictment in this case, but rather has the
“status” of nothing more than a “witness” in the investigation. As such, the
Special Counsel avers that the CIA is not aligned with the prosecution. Similarly,
the Special Counsel argues that the President’s directive for White House
employees to cooperate with the investigation does not align the OVP with the
prosecution because the OVP did not join in the investigation, but merely
provided responsive documents to the Office of Special Counsel upon request.
The Special Counsel also notes that the President's directive did not provide the
Office of Special Counsel with complete access to documents contained in the
OVP. Accordingly, the Special Counsel alleges that the documents responsive to
the defendant’s requests are not “within the possession, custody, or control of the
government” as envisioned by Rule 16.
Id. at 9 (internal citations omitted). The court disagreed, holding that the items were
discoverable under Rule 16 because the Special Counsel had knowledge of, and access to, the
relevant documents requested by the Defense. The court stated:
The Office of Special Counsel has therefore sought and received a variety of
documents from both the OVP and the CIA. It was well aware at the outset of this
investigation that both of these entities had documents pertinent to the
investigation. Moreover, there can be little doubt that upon the Office of Special
Counsel’s requests, there has been a rather free flow of documents to that Office
from both the OVP and the CIA, which have then been used to investigate the
alleged unauthorized disclosure of classified information and which were used as
the basis for obtaining the indictment in this case. These entities have therefore
contributed significantly to the investigation, and without their contribution it is
unlikely that the indictment in this case would ever have been secured. Thus, this
Court concludes that it has been established that the Office of Special Counsel has
knowledge of and access to the documents responsive to the defendant’s requests
for Rule 16 purposes. Moreover, based upon the nature of the relationship
between the Office of Special Counsel and the OVP and the CIA, this Court must
conclude that these entities are closely aligned with the prosecution. To hold
otherwise, would permit the Office of Special Counsel access to a plethora of
documents from the OVP and CIA, which are likely essential to the prosecution
of this case, but leave other documents with these entities that are purportedly
beyond the Special Counsel’s reach, but which are nonetheless material to the
preparation of the defense. Such a result would clearly conflict with the purpose
and spirit of the rules governing discovery in criminal cases. Accordingly,
6

21082

because the Office of Special Counsel has benefitted from the cooperation of the
White House [and the CIA], ... he cannot now, in fairness, be permitted to
disclaim all responsibility for obtaining Presidential [and CIA] documents that are
material to the preparation of the defense.
Id. at 11. Thus, because the government in Libby had knowledge of, and access to, the
documents in question, it could not then resist producing them to the defendant by claiming that
they were not in the possession, custody or control of the government.
11. Similarly, in United States v. Santiago, the Ninth Circuit found “no [] requirement” that the
agency in technical possession of the documents had to have participated in the investigation of
the offense in order for the documents to be considered in the possession, custody or control of
the government. United States v. Santiago, 46 F.3d 885, 893-94 (9th Cir. 1995). Rather, the
Santiago court held that because the prosecution had “knowledge of and access to the inmate
files held by the Bureau of Prisons” the information was discoverable under Rule 16. Id. at 894.
The court continued:
Unlike cases in which the government lacked any inkling that the documents at
issue existed, the prosecution certainly knew that prison files for the inmate
witnesses existed. Moreover, because the government was able to obtain
Santiago’s prison file from the Bureau of Prisons, it cannot deny that it also had
access to the files of other inmates. As a general matter, the fact that the Bureau of
Prisons and the United States Attorney's Offices are both branches of the
Department of Justice would facilitate access by federal prosecutors to prison
files.
Id. (internal citations omitted).
12. Likewise, in United States v. Giffen, 379 F.Supp.2d 337 (S.D.N.Y. 2004), the defendant
sought documents (including classified documents) which were in the possession of aligned
agencies, including the CIA and the Department of State. The prosecution resisted producing
those documents to the defendant under Rule 16 on the basis that they were not within the
prosecutor’s direct control. Id. at 342. The court found the prosecution’s position unpersuasive,
stating that “documents that the government has reviewed or has access to must be provided to
aid a defendant in preparing his defense.” Id. at 343. Accordingly, because “[t]he Government
acknowledges that it has reviewed documents related to [the defendant] at the CIA and the
Department of State during the course of its investigation [] [the defendant] is entitled to review
those classified document to assess the viability of a public authority defense.” Id. See also
United States v. Poindexter, 727 F.Supp. 1470, 1478 (D.D.C. 1989)(“In this case, the
Independent Counsel has had access in the course of its investigation to extensive quantities of
White House documents, including some documents held by the former President and Vice
President. He has benefitted from the cooperation of the White House in this area, and he cannot
now, in fairness, be permitted to disclaim all responsibility for obtaining Presidential documents
that are material to the preparation of the defense”).

7

21083

13. The policy rationale behind the requirement that Rule 16 be interpreted to cover information
that the government has access to or knowledge of is articulated in United States v. Trevino, 556
F.2d 1265 (5th Cir. 1977):
Certainly the prosecutor would not be allowed to avoid disclosure of evidence by
the simple expedient of leaving relevant evidence to repose in the hands of
another agency while utilizing his access to it in preparing his case for trial; such
evidence is plainly within his Rule 16 “control.”
Id. at 1272. See also United States v. Roberton, 634 F.Supp. 1020, 1025 (E.D. Cal. 1986)
(“limiting ‘government’ to the prosecution alone unfairly allows the government access to
documents without making them available to the defense.”). In other words, if the rule were read
to cover only documents in the technical possession, custody or control of the government, it
would create a perverse incentive for prosecutors to “stash away” relevant evidence with aligned
or cooperating agencies. See United States v. Poindexter, 727 F.Supp. 1470, 1477 (D.D.C.
1989)(“Courts have in the main been more concerned with fairness to the defendant, on the one
hand, and the government’s ease of access to the documents sought, on the other, than with the
issue whether the documents are actually within the physical possession of the prosecutor.”).
Clearly, where the government has knowledge of, or access to, an item specifically requested by
the Defense, it cannot evade its discovery obligations by claiming that the evidence is not in its
possession, custody or control.
ii) Documents are in the “Possession, Custody or Control” of the Government where the
Documents are held by an Agency that Participated in a Joint Investigation or by an
Agency that is Closely Aligned with the Prosecution
14. It is well-established under federal law that documents held by an agency that is jointly
investigating the defendant are in the “possession, custody or control” of the government for the
purposes of Rule 16. See e.g. United States v. Upton, 856 F.Supp. 727, 749-50 (E.D.N.Y.1994)
(“The key to the analysis ... is the level of involvement between the United States Attorney’s
Office and the other agencies. … The inquiry is not whether the United States Attorney’s Office
physically possesses the discovery material; the inquiry is the extent to which there was a ‘joint
investigation’ with another agency.”); United States v. McDavid, 2007 WL 926664, *3 (E.D.
Cal.) (court held that “materials are subject to [Rule 16] if the prosecutor has knowledge of or
access to them or if they are maintained by an agency involved in the investigation.”); United
States v. Johnson, 2011 WL 4729966, *2 (N.D. Ohio) (“The disclosure requirements [under Rule
16(a)(1)(E)], however, apply not only to the information in the prosecutor’s own files, but also to
information held by ‘the law enforcement agency investigating the offense.’”); United States v.
Holihan, 236 F.Supp.2d 255, 260 (W.D.N.Y. 2002) (“the prosecutor alone is responsible for
ensuring that Defendant is provided with information discoverable under Rule 16, including
information that is in the possession of other government agencies participating in the
investigation.”); United States v. Microtek International, 74 F.Supp.2d 1019, 1020 (D. Ore.
1999) (responses to public inquiries are within the control of the government because the
Department of Commerce was involved in the investigation of this case); United States v. Zuno–
Arce, 44 F.3d 1420, 1427 (9th Cir.1995) (prosecutor is “deemed to have knowledge of and
8

21084

access to anything in the custody or control of any federal agency participating in the same
investigation of the defendant.”).
15. It is also well-established that documents that are in the possession of a closely aligned or
cooperating agency are deemed to be in the “possession, custody or control” of the government
for the purposes of Rule 16. In other words, by virtue of the close relationship between the
prosecution and the aligned/cooperating agency, the government has constructive possession,
custody or control of the documents. See, e.g., United States v. Bryant, 439 F.2d 642, 650 (D.C.
Cir. 1971) (tape recording of undercover drug deal with defendant, taken by agents of the Bureau
of Narcotics and Dangerous Drugs, was discoverable under Rule 16(a)(1) because “government”
may include both the prosecution and an aligned agency); United States v. NYNEX Corp., 781
F.Supp. 19, 25 (D.D.C.1991)(holding that prosecution must produce materials possessed by
other federal agencies allied with the prosecution). Thus, where organizations or agencies have
engaged in a joint investigation with the prosecution or are closely aligned with the prosecution,
the requested items are considered to be in the possession, custody and control of the government
within the meaning of Rule 16.
B.

Application of Federal Precedent to Interpret “Possession, Custody or Control” in
the Instant Case

16. It is clear that under federal law, a prosecutor cannot evade his discovery obligations under
the federal equivalent to R.C.M. 701(a)(2) simply by saying that the requested information is not
in the possession, custody or control of the government. Instead, the prosecutor is required to
either turn over material which: i) he has access to or knowledge of; or ii) is held by agencies
that participated in a joint investigation of the accused or by agencies that are closely aligned
with the prosecution.
17. In this case, the Government has stated that the “Federal Bureau of Investigation (FBI) …
participated in the joint investigation of the accused.” Government Response, p. 1. Accordingly,
any specifically-requested evidence from the FBI’s law enforcement files, including the grand
jury transcript, must be turned over under R.C.M. 701(a)(2) as being in the “possession, custody
or control” of military authorities.5 In fact, the Government has already provided information
from the FBI investigation to the Defense in discovery. Thus, the FBI files are clearly in the
Government’s possession, custody and control. Why is the Government arbitrarily drawing the
line at the grand jury testimony? Why is the grand jury testimony not in the Government’s
possession, custody and control, when the other FBI files are?
18. R.C.M. 701(a)(2) must be interpreted to include information that is technically in the hands
of a joint investigative agency or any other closely aligned agency. Otherwise, the trial counsel
“would [] be allowed to avoid disclosure of evidence by … leaving relevant evidence to repose
in the hands of another agency while utilizing his access to it in preparing his case for trial; such
5

The Defense is not clear on exactly which entity, FBI or DOJ, the Government claims is in possession of the grand
jury transcript. If the grand jury transcript is within the DOJ, the Court should nonetheless order its production as
the DOJ is a closely aligned agency. See Government Response, p. 4 (“The prosecution collaborated with the
federal prosecutors within the DOJ during the accused’s investigation”).

9

21085

evidence is plainly within his Rule 16 ‘control.’” United States v. Trevino, 556 F.2d 1265, 1272
(5th Cir. 1977). Such is clearly the case with much of the discovery sought by the defense to
date, including the grand jury transcript.
19. If R.C.M. 701(a)(2) were not interpreted in line with federal case law, all an Army
prosecutor would need to do to evade his R.C.M. 701(a)(2) discovery obligations would be to
involve aligned or cooperating agencies in the case and then ensure that these agencies kept the
evidence that the prosecutors did not want disclosed in its entirety.6 United States v. Poindexter,
727 F.Supp. 1470, 1478 (D.D.C. 1989)(“several courts have noted that a prosecutor who has had
access to documents in other agencies in the course of his investigation cannot avoid his
discovery obligations by selectively leaving the materials with the agency once he has reviewed
them.”). This does not comport with the spirit of R.C.M. 701(a)(2), nor the letter of Rule
701(a)(2), properly construed. See also Article 46, UCMJ (“The trial counsel, the defense
counsel, and the court-martial shall have equal opportunity to obtain witnesses and other
evidence in accordance with such regulations as the President may prescribe.”).
20. Although there is no military case directly on point, the Court of Military Appeals has
recognized that evidence outside the physical possession of the military might nonetheless be
within the “possession, custody or control of military authorities.” In United States v. Charles,
40 M.J. 414 (C.M.A. 1994), the issue turned on whether certain personnel files related to two
civilian state police officers should have been disclosed pursuant to either R.C.M. 701(a)(2) or
Brady. The military judge in that case had denied the defense access to the civilian personnel
files after an in camera review; the personnel files were then marked as an appellate exhibit, but
subsequently lost. On appeal, the Court of Military review analyzed whether the non-disclosure
of the (now lost) records under R.C.M. 701(a)(2) denied the accused his right to appellate
review. It concluded that it did not and affirmed the conviction. The Court of Military Appeals
framed the issue as whether “appellant had the right to appeal a judge’s decision denying the
requested records under R.C.M. 701(a)(2)(A) because they were not ‘material to the preparation
of the defense’.” Id. at. 417. The key, for these purposes, is that both the Court of Military
Review and the Court of Military Appeals considered the discoverability of civilian police
officer personnel files under R.C.M. 701(a)(2)(A). Clearly, the personnel records of state police
officers are not technically in the possession, custody or control of military authorities. State
police officers are not, in the Government’s words, operating under Title 10 status or subject to a
military command. However, given what was (presumably) some close alignment between the
state police and the military authorities in this particular case, these records were properly
considered under the R.C.M. 701(a)(2) standard. See also United States v. Williams, 2005 WL
3215323 (2005)(unpublished)(in response to a defense discovery request for U.S. customs
documents in a case where charges stemmed from wrongful importation of a drug, the court
referenced R.C.M. 701(a)(2); while the court ultimately denied discovery, noting that the
requested documents would have no effect on resolution of the relevant issues, the court did not
state that such customs documents were not in the possession, custody or control of military
authorities). Military courts thus recognize that discovery obligations under R.C.M. 701(a)(2)
are broader than what may physically be in the possession, custody or control of military
authorities.
6

The Defense recognizes, of course, that the Government would still have an obligation under Brady to produce
favorable evidence.

10

21086

21. R.C.M. 701(a)(2) must be read consistently with federal case law to include documents that
are maintained or held by agencies that are jointly investigating the accused or agencies that are
closely aligned with the prosecution. If it were not so read, then defendants in federal cases
would benefit from much broader discovery rights than their military counterparts, as those
defendants would have access under Rule 16(a)(1)(C) to documents of agencies involved in joint
investigations or agencies that are closely aligned with the prosecution, while military accuseds
would not. This, in turn, could not be reconciled with the repeated statements of military courts
that military discovery is much broader than that available in civilian courts. See United States v.
Hart, 29 M.J. 407, 410 (C.M.A. 1990) (“[D]iscovery available to the accused in courts-martial is
broader than the discovery rights granted to most civilian defendants.”); United States v. Guthrie,
53 M.J. 103, 105 (C.A.A.F. 2000) (“Discovery in military practice is open, broad, liberal, and
generous.”); United States v. Simmons, 38 M.J. 376, 380 (C.M.A. 1993) (“Congress intended
more generous discovery to be available for military accused.”); United States v. Killebrew, 9
M.J. 154, 159 (C.M.A. 1980) (“Military law has long been more liberal than its civilian
counterpart in disclosing the government’s case to the accused and in granting discovery
rights.”); United States v. Adens, 56 M.J. 724, 731 (A. Ct. Crim. App. 2002) (“The military
criminal justice system contains much broader rights of discovery than is available under the
Constitution or in most civilian jurisdictions.”).
CONCLUSION
22. In accordance with the above, the Defense requests that the Court order the entire grand jury
proceedings in relation to PFC Manning or Wikileaks to be produced to the Defense, or
alternatively, that it be produced for in camera review to determine whether the evidence is
discoverable under R.C.M. 701(a)(2) as being material to the preparation of the defense. If the
Court concludes that grand jury testimony is not within the possession, custody or control of
military authorities, the Defense still requests that the Court order production of the entire grand
jury investigation under the “relevant and necessary” standard under R.C.M. 703.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

11

21087

18 April 2012
MEMORANDUM FOR RECORD
SUBJECT: Security Expert Review of Defense Motions
I. lhereby certify that have reviewed the following Defense motion for the presence of
classi?ed information:

a) Defense Reply to Prosecution Response to Defense Request for Partial Reconsideration of
Discovery Ruling"

I do not believe that this motion contains classi?ed information or information that a reasonable
person could believe to be classi?ed.

2. The point of contact for this memorandum is the undersigned at

ff?

CASS
IS Division
INSCOM G2

21088

INTHEUNITEDSTATESARMY
FIRSTJUDICIALCIRCUIT

UNITEDSTATES
DEFENSE RENE^ALOF
MOTIONFORPARTICULARS

MANNING,BradleyE,PFC
U.S.Army(b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
FortMyer,^A 22211

DATED: 6April2012

RELIEFSOUGHT
1. PFC Bradley E.Manning, by and through counsel, moves this court, pursuant to R.C.M.
906(b)(6) and the Fifth, Sixth and Eighth Amendments to the United States Constitution to direct
the Government to file the requested particulars fbrthel8U.S.C.^641offense.

BURDEN OF PERSUASION AND BURDEN OFPROOF
2. As the moving party,the Defense has the burden of persuasion. R.C.M. 905(c)(2). The
burden ofproofis byapreponderanceofthe evidence. R.C.M.905(c)(1).

WITNESSES^^IDENCE
3. The Defense does not request any witnesses be produced fbr this motion. The Defense
respectfully requests this court to consider the referred charge sheet in support ofits motion.

LEGALAUTHORITY AND ARGUMENT
4. The Govemment has opposed the Defense'srequest fbr particulars on whether the
Govemmentalleges that PFC Manning "stole" or "converted" underl8U.S.C.^641. The Court
ordered that the Defense provide the Govemment with authority that showed there wasa
difference between "stealing" and "converting" within the meaning of section 641. Onl9March
2012, the Defense sent the following email to the Court and the Govemment:
At the last39(a), the Court requested the Defense to provide cases conceming the terms
steal, purloin, and convert with regards to 18U.S.C.^641.In this case, the Govemment

^I^I^^^E^^^^^^^^
Fa^^.^ ^^t^^^^^^

^^^^

21089

does not allege embezzlement. Instead, the Govemment alleges steal, purloin, or
knowingly convert. Based upon the charged specification:
a) SteahTosteal property means to take someone else'sproperty without the ov^er's
consent with the intent to permanently deprive the owner ofthe value ofthat property.
^^^.^.^^^^^v^f/^^^/^^^^,342US 246, 270 71 (1952) ("Probably every stealingisa
conversion, but certainly not every knowing conversion isastealing.'Tosteal means to
take away fiom one in lawful possession without right with the intention to keep
v^ongfully."')(citations omitted.)
b) Purloin:Topurloin is to steal with the element of stealth, that is, to take by stealth
someone else'sproperty without the owner'sconsent with the intent to permanently
deprive the ov^er ofthe value of that p r o p e r t y . 3 4 2 U.S.246,
270(1952)
c) Conversion:Toknowingly convert property means to use the property in an
tmauthorized manner inaway which seriously and substantially interfered with the
govemment'suse of the property,knowing that the property belonged to the United
States, and knowing that such use was unauthorized. ^^f.^.^^^/^v^^f^^^^^^^^.^, 342
US 246,271-72(1952)
Ibelievethatlunderstood the Govemment'sposition to be that there was no difference
between steal and purloin.Thus,we are only dealing with steal or knowingly convert.
Given the Supreme Court'sclear pronouncement that there isadistinction between
stealing and knowingly converting, the Defense requests that the Govemment provide
clarification as to which theory it is alleging.
5. The Govemment did not respond to this email. Almost two weeks later, the Defense sent
another email to the Govemment asking i f i t was planning on responding. TheGovemment
responded as follows:
In reference to the below email,we agree that under Morissette the Court determined
there may be slight variances between what constitutes stealing and knowing conversion.
However, each federal circuits'jury instructions are different and some circuits treat the
two similarly.Westill do not believe the govemment is required to specify which theory
we are alleging.The accused is on notice ofboththeories.This is stillamatter best left
fbr instmctions. [Email fiom MAJFein,2April,2012].
6. The Govemment acknowledges that theU.S.Supreme Court has determined that there isa
difference between "stealing" and "converting" under section 641. However, according to the
Govemment, because some circuits'pattem jury instmctions treat the offenses similarly,it will
not provide the requested particulars.
7. The Defense does not understand the Govemment'sposition. The Supreme Court has said
that "stealing" and "converting" are two different offenses under section 641. ^^^^^^^.^.^^^^^^
But because the Govemment believes that some unspecified boilerplate jury instmctions
treat the of^nsessimilarly,this is cause to refitse to provide the requested particulars^ Contrary

21090

to the Govemment'sbelief, the instmctions don'tinfbrm the law; rather, the law informs the
instmctions.
CONCLUSfON
8. In light of the Govemment's(appropriate)concession that stealing and converting are two
different things, the Defense requests that the Court order the Govemment to provide the
requested particulars.

Respectfully submitted.

DA^ID EDWARDCOOMBS
Civilian Defense Counsel

21091

From:
To:
Cc:

Subject:
Date:
Attachments:

David Coombs
Lind. Denise R COL MIL USA OTJAG
"Kemkes. Matthew J MA3 USARMY (USY: "Bouchard. Paul R CFT USARMY (USV; "Santiago. Melissa S CW2
USARMY fUSV: Morrow I I I . JoDean. CFT USA JFHO-NCR/MDW SJA: Overgaard. Anoel M. CFT USA JFHONCR/MDW SJA: Whvte. Jeffrev H. CFT USA JFHO-NCR/MDW SJA: Ford. Arthur D. CW2 USA JFHQ-NCR/MDW
SJA: a(b) (6)
: Williams. Patricia CIV JFHO-NCR/MDW SJA: Fein. Ashden MAJ USA JFHONCR/MDW S M ; (b) (6)
Renewal of Bill of Particulars Motion
Friday, April 06, 2012 4:00:11 PM
Def Bill of Particulars - renewal.odf
Def Bill of Particulars - renewal.doc

Ma'am,
Please find attached the Defense's Renewal of Motion for Particulars.
v/r
David
David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.eom
www.armycourtmartialdefense.com
***Confidentiality Notice: This transmission, including attachments, may
contain confidential attorney-client information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is prohibited.***

21092

UNITED STATES OF AMERICA
GOVERNMENT REPLY
TO DEFENSE RENEWAL OF
MOTION FOR PARTICULARS

T.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

17 April 2012

RELIEF SOUGHT
COMES NOW the United States of America, by and through undersigned counsel, and
respectfiilly requests this Court deny the defense renewal of its motion for particulars.

BURDEN OF PERSUASION AND BURDEN OF PROOF
As the moving party, the defense has the burden of persuasion on any factual issue the
resolution of which is necessary to decide the motion. RCM 905(c)(2). The burden of proof is
by a preponderance of the evidence. RCM 905(c)(1).
WITNESSES/EVIDENCE
The United States requests the Court consider the referred charge sheet.
LEGAL AUTHORITY AND ARGUMENT
The United States is not required to clarify the specific theory it is alleging with respect
to Specifications 4, 6, 8, 12, and 16 of Charge II. The defense is on notice that the accused stole,
purloined, or knowingly converted property belonging to the United States. The United States
has not charged the accused with different offenses in one specification; merely altemative ways
of committing the same offense. See 18 U.S.C. §641. In this case, the defense is usmg its
request for particulars to restrict the Govemment's proof relating to the methods of committing
the underlying offense. A bill of particulars is not appropriate when used to restrict the
Govemment's proof at trial. See RCM 906(b)(6) discussion.
CONCLUSION
For the reasons stated above, the United States requests this Court DENY the defense
renewal of its motion for particulars.

"^^TW
JODEAN MORROW
yCPT, JA
Trial Counsel
1

APPELLATE EXH1BIT^2.
PAGE REFERENCED:
.
PAGE
OF
PAGES

21093

Icertify^thatlserved or caused to be servedatmecopyofthe above on Mr. David i2^.
Coombs, Civilian Defense Counsel, via electronic mail, onl7 April 2012.

^ ^ ^ ^ ^

lODLANMORROW
CPT,JA
Trial Counsel

21094

From:
To:
Cc:

Fein. Ashden MAJ USA JFHO-NCR/MDW SJA
Lind. Denise R COL MIL USA QTJAG
Pgyitl C w m t ; ; ; "Tooman. Joshua J CPT USARMY fUSV: (b) (6)
Morrow I I I . JoDean.
CPT USA JFHO-NCR/MDW SJA: Overgaard. Angel M. CFT USA JFHQ-NCR/MDW SJA: Whvte. Jeffrev H. CPT
USA JFHO-NCR/MDW SJA: VonElten. Alexander S. ILT USA JFHQ-NCR\MDW SJA: F(b) (6)

Bcc:

Subject:
Date:
Attachments:

Response & Reply
Tuesday, April 17, 2012 8:47:00 PM
120417-Government Response to Discoverv Reconslderation.docx
120417-Government Response to Discoverv Reconsideration.odf
120417-Replv to Motion to Renew BoP.docx
120417-Replv to Motion to Renew BoP.odf

Ma'am,
Attached to this email are the following documents:
1. Government Response to Discovery Reconsideration-Grand Jury
2. Government Reply to Motion to Renew Bill of Particulars

v/r
MA] Fein

21095

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)

DEFENSE RENEWAL OF
MOTION TO COMPEL
DISCOVERY OF COMPUTERS

DATED: 30 March 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by counsel, pursuant to R.C.M. 701(a)(6) and 701(2)(A) and
applicable case law, requests this Court to order the Government to conduct searches on the
relevant computers as outlined in this motion. If the Court does not grant this Order, the Defense
requests specific findings of fact and law on the record.
FACTS
2. On 23 March 2012, the Court granted the Defense Motion to Compel Discovery in part with
regard to the 14 hard drives from the Tactical Sensitive Compartmented Information Facility (TSCIF) and the Tactical Operations Center (TOC) of Headquarters and Headquarters Company
(HHC), 2nd Brigade Combat Team (BCT), 10th Mountain Division, Forward Operating Base
(FOB) Hammer, Iraq. The Court Ordered the Government to immediately cause an inspection of
the 14 hard drives for the presence of “Wget, M-IRC Chat, Google Earth, movies, games, music
and any other specifically requested program from the Defense.” See Ruling: Defense Motion to
Compel Discovery, p. 11.
3. The Defense, in consultation with its computer forensic experts, proposed a process that
would accurately identify any unauthorized music, movies, games, or other programs. The
process could be easily completed within a matter of a few days and would not reveal the content
of any file. Thus, the information revealed would not be classified, and would not necessitate a
review by any Original Classification Authority (OCA).
4. The process recommended by the Defense involved the Government’s forensic experts
providing the Defense with an EnCase Folder Structure in .rtf format that includes the filenames
within each of the following folders for every identified user profile on each hard drive:
a. Program Files;

1

21096

b. User Profile Storage regarding: Music, Games, Pictures, Local Settings\Application Data;
(the Defense has eliminated any reference to “documents” and “etc.” in order to avoid any
confusion by the Government);
c. Windows\Prefetch; and
d. The following four paths1: (1) Documents and Settings\\Local
Settings\Application Data\; (2) Documents and Settings\\Application Data\; (3)
Users\ \AppData\Local; and (4) Users\\AppData\Roaming.
5. The Government opposed the Defense request stating that the list of file names would likely
also list classified information because many filenames have actual classified information in the
names, such as the ones the accused has been charged with compromising. [Email from MAJ
Ashden Fein, March 26]. The Government also stated that its position is that the Defense should
be able to at least articulate what unauthorized software it believes is on the hard drives,
“otherwise this is a classic fishing expedition for classified information.” Id. With a Defense
provided list, the Government stated that its expert could search the drives and determine
whether the information is actually on the drive.
6. The Court tentatively ruled that it would not force the Government to identify all programs on
the 14 hard drives. The Court’s position was based, in part, upon a belief that the Government
did not concur with the Defense that the process could easily be accomplished without the need
for a lengthy delay.
7. Based upon the concerns of the Court, the Defense contacted its computer forensic experts
again and asked if there were an easier process that would eliminate the Government’s objections
and the Court’s concerns. Mr. Trent Struttmann, one of the Defense computer forensic experts,
suggested an even simpler process. This process will allow the Government to obtain only a list
of installed programs. According to Mr. Struttmann, the process can be achieved in less than
five minutes. The proposed process is as follows:
a. Load up the case file;
b. Run the “Case Processor” and select “Windows Initialize Case”;
c. Choose to run the “software” module;
d. Hit “OK” and then wait for the process to finish.
8. Mr. Struttmann maintains that the Case Processor should take less than 30 seconds to
complete its task. Once the task is completed, the user simply needs to go to the bookmarks tab.
Within the bookmarks tab, one will see a “Software Info” folder that the Case Processor has just
created. The user then needs to hit the “Report Tab” and export the results to a RTF list. This
1

Each identified path was not specifically detailed in the Defense’s original request, but is now being identified in
order to be responsive to the Government’s concern of revealing classified information. The listed paths will avoid
any classified documents or classified content.

2

21097

would then complete the entire process. Once complete, one would have a complete and
accurate list of all software (and only the software) on the computer by name without any other
information. This process would only provide a list of software. The Government would then
need to separately identify any unauthorized music or movies.

WITNESSES/EVIDENCE
9. If the Government does not stipulate that the above process is accurate, the Defense requests
the testimony of Mr. Trent Struttmann for the purposes of this motion.
ARGUMENT
10. The Defense believes it is entitled to discovery of the relevant computers under R.C.M.
701(2)(A) as being “tangible objects … which are within the possession, custody or control of
military authorities, and which are material to the preparation of the defense.” The Defense also
maintains that if the computers contain the software that the Defense has reason to believe they
contain, then this information would be classic Brady material that the Government is obligated
to disclose to the Defense under R.C.M. 701(a)(6).
11. While the Defense believes that it is entitled to inspect the actual computers (or a digital
image thereof), in the interest of expediency, the Defense is amenable to having the Government
perform a meaningful search of the computers for the requested information. As submitted to the
Court, the Defense proposes that the Government’s forensic experts follow a simple process that
will yield a list of program/software names. This, in turn, can be compared against the list of 94
authorized programs to determine how pervasive the practice of adding of “unauthorized”
software was in the T-SCIF and TOC.
12. The Defense’s tentative theory is that all or most soldiers in the SCIF had unauthorized
software on their computers (e.g., M-IRC Chat, Google Earth, Wget, movies, music, games,
etc.). This is amply supported by the Article 32 testimony. The Defense intends to show that the
practice of adding “unauthorized” software was so pervasive that, in effect, all “unauthorized”
programs were implicitly or explicitly authorized. As aptly stated in this Court’s ruling, the
Defense’s theory is that “the information is relevant to establish the defense theory that the
addition of software not on the approve list of authorized software was authorized by the
accused’s chain of command through the practice of condoning and implicitly or explicitly
approving the additions of such software.” (Ruling: Defense Motion to Compel Discovery, p. 4).
Simply because the Government does not believe this is a viable defense does not mean that the
Defense should not be able to pursue it and advance it at trial, if there is evidence to support it.2

2

The Court alludes to the fact that the “Defense has evidence from the Article 32 witnesses to further the Defense’s
theory” – thus suggesting that a full search of the computers is not necessary. While the evidence at the Article 32
hearing certainly supports the Defense’s theory, it does not establish just how widespread the practice was.

3

21098

13. The Defense also believes that if the search yields the expected results (i.e. that it was
common for soldiers to add unauthorized software), this is classic Brady material under R.C.M.
701(a)(6). The Defense would argue that this would reasonably tend to negate or reduce guilt for
the charged offenses related to unauthorized software. At a very minimum, it would reasonably
tend to reduce punishment. If it can be shown that every other soldier in PFC Manning’s unit
also downloaded software that was not on the approved list, this would certainly bear on the
punishment that PFC Manning should receive for these particular offenses (which carry with
them a maximum period of 4 years of confinement combined).
14. The Defense believes that if PFC Manning had only been charged with the offense of adding
unauthorized software to a government computer, the Government would not be maintaining the
position it is. The Government cannot fulfill its Brady obligations simply by turning over
evidence that this favorable to the Defense in that it tends to reduce guilt or punishment of the
more serious offenses. Brady applies equally to all offenses.
15. There is clear evidence that many soldiers added “unauthorized” software to computers.
Now that the Government has this knowledge, it cannot simply ignore it. It has the independent
obligation to search the computers to turn over evidence that falls within R.C.M. 701(a)(6).
Moreover, the request for a list of software programs on the relevant computer is squarely within
the parameters of R.C.M. 701(2)(A), which provides that all tangible items in the Government’s
possession, custody or control must be turned over if they are “material to the preparation of the
Defense.” As argued in the Motion to Dismiss, the standard of materiality is not a high one.
See, e.g., United States v. Roberts 59 M.J. 323 (C.A.A.F. 2004)(“ The defense had a right to this
information because it was relevant to SA M's credibility and was therefore material to the
preparation of the defense for purposes of the Government's obligation to disclose under R.C.M.
701(a)(2)(A).”).
16. The Court ruled on 23 March 2010 that a complete search of the hard-drives was not
material to the preparation of the defense for the charged specifications. However, the Court
directed the Government to “search each of the 14 hard drives [for] Wget, M-IRC Chat, Google
Earth, moves, games, music, and any other specifically requested program from the Defense.”
See Ruling: Defense Motion to Compel Discovery, p. 11. When the Defense consulted with its
computer experts, it learned that this process was not likely to yield meaningful results in terms
of getting access to the information sought – i.e. exactly how pervasive was the practice of
adding unauthorized software in the SCIF? The Defense’s expert proposed an alternative means
of searching the relevant computers which would be minimally cumbersome for the Government
and would yield the results sought by the Defense.
17. The Government has resisted this proposed approach, indicating instead that the Defense
must submit a list of software programs that the Government will then specifically search for.
Moreover, it allows the Government to undercut the Defense’s theory by calling rebuttal witnesses – all while
having access the actual forensic results and not disclosing them to the Defense. In short, the Government should
not be able to remain willfully blind and then call rebuttal witnesses to suggest that the practice was not widespread
when it has evidence in its possession that could verify the facts either way. Further, unit witnesses are not likely to
be forthcoming with whether they did, in fact, add unauthorized software to computers as this would incriminate
them and subject them to criminal prosecution for violating a lawful general regulation.

4

21099

Unfortunately, this misses the point of the entire discovery request. The point was to see how
many other unauthorized software programs were found on the computers in the SCIF. If the
Defense submits a list with, say, 50 different software programs and 5 of them are found on the
relevant hard drives, this does not prove anything. It simply proves that these 5 random software
programs were on some or all of the hard drives. It does not speak to the pervasiveness of the
practice of adding authorized programs to government computers.
18. The Defense’s computer experts have indicated that there are over 5 billion records of
software in the Global Software Registry. To prepare a list that the Government will then look
for is like playing a game of “Battleship” where the Defense has to guess which particular
programs a soldier in PFC Manning’s SCIF might have downloaded.3 If the Defense guesses
correctly, then that might be some proof (however limited) that others downloaded unauthorized
software. If the Defense guesses incorrectly, which it is apt to do given the number of software
programs out there, this does not prove anything. It simply shows—to use the Battleship
analogy—that the Defense has not guessed the right coordinates.
19. The Government further resists performing the search requested by the Defense on the
grounds that it is likely to yield classified data.4 The Defense has trouble understanding how a
screen shot of program/software names will yield classified data. But, to the extent that it does,
the Defense has requested that the Government simply redact the classified information and state
something to the effect of, “Program X, not on approved software list.” The Defense is not
interested in the names of the programs, or even the types of programs—simply the number of
programs that appear on the hard drives that are not on the approved software list. Additionally,
under the process recommended by Mr. Struttmann, the concern of the Government is eliminated
(based upon the Government’s representation during the 802 conference that it was unaware of
any classified programs on the DCGS-A computer).
20. The Defense has proposed a simple, common-sense way of proceeding that avoids the
potential disclosure of classified information. And yet, the Government inexplicably opposes the
request. If the results of the proposed search are favorable, then they are Brady material which
the Government must disclose. If the results of the search are unfavorable (i.e. no other soldier
added software to his/her computer), then that evidence will be helpful to the Government’s
3

Battleship is a guessing game involving two players. The game is played on four grids, two for each player. The
grids are typically square – usually 10×10 – and the individual squares in the grid are identified by letter and
number. On one grid the player arranges ships and records the shots by the opponent. On the other grid the player
records his/her own shots. Before play begins, each player arranges a number of ships secretly on the grid for that
player. Each ship occupies a number of consecutive squares on the grid, arranged either horizontally or vertically.
The number of squares for each ship is determined by the type of the ship. The ships cannot overlap (i.e., only one
ship can occupy any given square in the grid). After the ships have been positioned, the game proceeds in a series of
rounds. In each round, each player's turn consists of announcing a target square in the opponent's grid which is to be
shot at. If a ship occupies the square, then it takes a hit. The player's opponent announces whether or not the shot has
hit one of the opponent's ships and then takes a turn. When all of the squares of a ship have been hit, the ship is
sunk. After all of one player's ships have been sunk, the game ends and the other player wins. See
http://en.wikipedia.org/wiki/Battleship_(game).
4
The fact that unauthorized program names may hypothetically yield classified information is not a reason to refuse
to conduct a Brady search or to turn over specifically-requested items pursuant to R.C.M. 701(a)(2). As stated in the
Court’s order, “Brady, RCM 701(a)(2), 701(a)(6), and 701(g) govern discovery of both classified and unclassified
information.” (Ruling: Defense Motion to Compel Discovery, pg. 10).

5

21100

prosecution of this offense.5 Given this, it is difficult to understand the Government’s opposition
to the Defense proposal.

CONCLUSION
21. In light of the foregoing, the Defense requests that this Court order the Government to
review the hard drives of the 14 computers using either of the methods proposed by the
Defense’s experts.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

5

Such information would also be helpful to the Defense within the meaning of R.C.M. 701(a)(2) in that it may
signal to the Defense that, as a trial strategy, this avenue is not worth pursuing.

6



OFFICIAL USE ONLY

30 March 2012
MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

l. I hereby certify that have reviewed the following Defense motions for the presence of
classi?ed infonnation:

a) Defense Request for Search Terms of Relevant Computers; and
b) Defense Renewal of Motion to Compel Discovery of Computers;

I do not believe that either of these motions contains classi?ed information or information that a
reasonable person could believe to be classi?ed.

2. The point of contact for this memorandum is ?e undersigned at


(gfss HALL
IS Division
INSCOM G2

USE ONLY





30 March 2012
MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

l. I hereby certify that I have reviewed the following Defense motions for the presence of
classi?ed information:

a) Defense Request for Search Terms of Relevant Computers; and
b) Defense Renewal of Motion to Compel Discovery of Computers;

I do not believe that either of these motions contains classified information or information that a
reasonable person could believe to be classified.

2. The point of contact for this memorandum is

7
undersismd at


.
AS

IS Division
INSCOM G2






21103







A .I I MA
Subject: Search and TOC Computers
Date: Friday, March 30,2012 11:05:21 AM
Attadnmentsz -



5 . .
Ma'am,

The Defense has attadied the following motions:

a) Defense Request for Seardw Terms of Relevant Computers; and
b) Defense Renewal of Motion to Compel Discovery of Computers.

The Defense has also attached the review of both motions by its security
expert - Mr. Cassius Hall.

v/r
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angeli Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, induding attadwments, may
contain confidential attorney-dient information and is intended for the
person(s) or company named. If you are not the intended redpient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is prohibit

21104

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE FORENSIC REQUEST

v. OF RELEVANT COMPUTERS
MANNING, Bradley E., PFC

U.S. Army,

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

DATED: 26 March 2012



1. The Defense, in consultation with its computer forensic experts, requests the following
process be perfonned in order to facilitate the Court?s Order compelling the Government to
immediately cause an inspection of 14 hard drives from the Tactical Sensitive Compartrnented
Information Facility (T-SCIF) and the Tactical Operations Center (T OC) of Headquarters and
Headquarters Company (HHC), Brigade Combat Team (BCT), 10"? Mountain Division,
Forward Operating Base (FOB) Hammer, Iraq:

a. The Government provides the Court and Defense with a list of the approved programs for
the Distributed Common Grounds System Anny (DCGS-A) computer;

b. The Govemment?s forensic experts provide the Defense with an EnCase Folder Structure
in .rtf format that includes the ?lenarnes within each of the following folders for every identi?ed
user pro?le on each hard drive:

(1) Program Files;

(2) User Pro?le Storage regarding: Documents, Music, Games, Pictures, Local
Settings\Application Data etc.;

(3) Windows\Prefetch

2. The requested process will accurately identify any unauthorized music, movies, games, or
other programs. The process will not, however, reveal any content of any ?le. Thus, the
information revealed will not be classified, and will not necessitate a review by any Original
Classi?cation Authority (OCA).

3. The above process can easily be completed within a matter of a few days. The process will
also eliminate the need for the Government to search each computer for every conceivable form
of tmauthorized media (music, movies, games and other programs). Moreover, this process
avoids the Defense having to guess at what, of the millions of software programs out there, might
be found on the relevant computers.


APPELLATE 5

Page__ of Page(s)

21105

4. The point of contact for this memorandum is the undersigned at or by e-mail
at

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel



OFFICIAL USE ONLY

30 March 2012

MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

1. I hereby certify that I have reviewed the following Defense motions for the presence of
classi?ed information:

a) Defense Request for Search Terms of Relevant Computers; and
b) Defense Renewal of Motion to Compel Discovery of Computers;

1 do not believe that either of these motions contains classi?ed information or information that a
reasonable person could believe to be classi?ed.

2. The point of contact for this memorandum is fine undersigned at


i/ 4/
y?
SSIUS HALL

IS Division
INSCOM G2

OFFICIAL USE ONLY

0 21107

30 March 2012
MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

1. I hereby certify that I have reviewed the following Defense motions for the presence of
classi?ed information:

a) Defense Request for Search Terms of Relevant Computers; and
b) Defense Renewal of Motion to Compel Discovery of Computers;

1 do not believe that either of these motions contains classi?ed information or information that a
reasonable person could believe to be classi?ed.

2. The point of contact for this memorandum is




7
undersigned at

AS IUSM

IS Division
INSCOM G2









From:

To:

Cc:
1 DW SJA:





'EdIl.



?fl 0 I

Subject: Search of T-SCIF and TOC Computers
om: Friday, March 30,2012 11:05:21 AM
A?adimentm

Semdnc?xnem?emsimndt
Ma'am,

The Defense has attadied the following motions:

a) Defense Request for Search Terms of Relevant Computes; and
b) Defense Renewal of Motion to Compel Discovery of Computers.

The Defense has also attadied the review of both motions by its security
expert - Mr. Cassius Hall.

v/
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, including attadiments, may
contain con?dential attomey-client information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is

21109

UNCLASSIFIED//FOUO

Version Description Document (VDD)
For
Basic Analyst Laptop
(BAL)
Distributed Common Ground Systems - Army
Software Version 3.1 Patch 3
(DCGS-A V3.1 P3)

1 October 2009

DON: 149015, Rev 1

UNCLASSIFIED//FOUO

ManningB_00412500

21110

DCGS-A Version 3.1 P3
Basic Analyst Laptop - Collateral

DCN: 149015, Rev 1
1 October 2009

UNCLASSIFIED//FOUO

Revision History
Revision
Original
1

Page(s)

Para.

February 17, 2009

N/A

N/A

Initial release

October 1,2009

N/A

N/A

Release of new Image with Re partition of
Drives, with SQL, Data Base hardening and
configuration changes

Date

Description of Change

UNCLASSIFIED//FOUO

ManningB_00412501

21111

DCGS-A Version 3.1 P3
Basic Analyst Laptop - Collateral

1.

2.
3.

UNCLASSIFIED//FOUO

Scope
1.1 Identification
1.2 System Overview
1.3 Document Overview
Referenced Documents
Version Description
3.1 Inventory of Materials Released
3.2 BAL Media Listing
3.3 Software Description
3.4 Possible Problems and Known Errors
3.5 Adaptation data
3.6 Related Documents
3.6.1 Post Clone Procedures
3.6.2 Installation Procedures
3.6.3 Technical Bulletins
3.6.4 Ovenwatch MFWS Release 6.2
3.7 COTS Software Sites
3.8 Hardware Description

UNCLASSIFIED//FOUO

ManningB_00412502

DCN: 149015, Rev 1
1 October 2009

2
2
6
7
7
7
7
7
9
10
10

21112

17DCGS AVersion31P3
Basic Analyst Laptop-Collateral

LINCLASSIFIED//FOLIO

DCN: 149015, Revi
1October2009

S^^^e
^.^ i^enti^t^^ti^n
This Version Description Document (VDD^ describes software release V3.1P3 being developed at the
direction of the Project Manager DCGS-A for use in the DCGS-A V3.1P3 Basic Analyst Laptops
(BALs), which include Dell M90,M6300, and the Alienware(A51M). Two other Client platforms are the
DellM490^orl^station,T5400Desl^top. The BALs, ^orl^station and Desl^top software version will be
authori:^ed to process up to Secret Collateral information and connect to the Secret Internet Protocol
Router Networl^ (SIPRNET) in accordance with AR 25-2 Information Assurance and Department of
Defense(DoD) Instruction 85002lnformatlon Assurance (lA^ Implementation.

^.^Systett^Ove^ie^
The A51M,M90 and/or M6300 are high-end laptop computers witha17^ monitor capable of displaying
high-resolution graphics. The Dell 490 ^orl^station and T5400 Desl^top with the V3.1P3S^ is used
within the DCGS-A fixed site baseline. Microsoft windows ^P Professional (Service Pacl^3^ utilised as
the operating system. The A51M,M90,M6300, Dell 490 and T5400 provide the Armyaclient
worl^station for use by DCGS-A analysts.
Note:TheA51M,M90,M6300,Dell 490 and T5400 is classified because ofafileohange within the
OueryTreeMuIti Functional ^orl^ Station (MF^S) Plug-In and the change to the high water marl^ing
^.^ i ^ o o i ^ t t ^ e n t ^ v e r v i e ^
This VDD documents the release tested and type-aocredited with the DCGS-A V3.1P3 Collateral
components in the DCGS-A laboratory environment at Fort Monmouth, N^, released to the Central
Technical Suppo^ Facility (CTSF), Fort Hood, T^: and then released to operational users for site
accreditation
Re^e^en^eciO^ot^o^ettts
Field Service Engineer (FSE^Training Guide,Part^3 1 03 1002C,dated1October 2009 prepared by
l2^D,Foi^ Monmouth N^
Note: All referenced documents are resident in the Software Engineering Center (SEC^ Software
Control and Reference Office (SCRO^

^ersi^nOesori^tion
^.^ inventory o^l^^teri^isReie^se^
Software forthe DCGSAV31P3 BAL is installed at the Software Integration Lab (SIL^ onto the
laptop s hard drive. Conseguently, no media will be delivered with the DCGS-A V3.1P3 BAL. All
updates are provided through download from digital media.
25 Hard Drives and3DVDs containing software and documentation for DCGS-A Version 3.1P3 is
resident in the Software Engineering Center (SEC^ Software Control and Reference Office (SCRO^
reference on paragraph 3.2. BAL Media Listing

0NCLASSIFIED//FOLIO

ManningB^00412503

21113

17DCGSAVersion31P3
Basic Analyst Laptop-Collateral
3.2

DCN: 149015, Rev 1
1 October 2009

LINCLASSIFIED//FOLIO

BAL IVIedia L i s t i n g

CM Control
Number

SCROCINCODE

DCGS0303

N/A

DCGS0318

N/A

Date of
media

Destination

4-NOV-09

1-Oct-09

Created
By

SECIFS/
SCRO

SEC
SCIF

SEC IFS/
SCRO

SEC
SCIF

Media

Contents
;
!
i
j
;
;

Type

DCGS-AV31P3M90 and/or M6300,
Alienware(A51M), Dell 490
Workstation and T5400
Desktop Client image Secret
DCGS-A V 3 1 P 3 - A P P 1 ,
APP2, lOP, MDC & BALs
Image

1 HD

1 set of
1 HD

3.3 Software Description
The following is a list of DCGS-A V3.1 P3 Client SW detailed software information:
NOTE: The Client SW listed can be loaded on the five platforms that include Dell M90, M6300, A51M,
Dell M490 Workstation and the Dell T5400 Desktop. Once the SW is loaded onto the platform, the
appropriate drives are loaded. The 12 Analysis Notebook (ANB) is loaded on the system without an
active software license, if the user chooses to use ANB; the user will procure the license. The Axis Pro
capabilities are in the DCGS-A MFWS V3.1.

BAL Software

Version

Acrobat Reader 9

9.1.2

Vendor

Function/Component

Adobe

PDF file reader

10.0.32.18

Adobe

Adobe Flash is the
authoring environment and
Flash Player is the virtual
machine used to run the
Flash files

10.0.22.87

Adobe

Flash Player

4.53.5

Future Skies

Alert Service Application

ArcGIS Desktop

9.2.1500

ESRI

ArcMap

9.2

ESRI

ArcGIS Military Analyst
(Military Analyst 9.2 SP2)

9.2.401

ESRI

ArcGIS Military Overiay Editor
9.2 (SP1)

9.2.0.430

ESRI

CECOM_MapShapes

1.00.0000

Ovenwatch

Chart Scrapper

7.2.0.1

Novel
Application

Adobe Flash Player Plug-in
Adobe Flash Player 10 Active
X
Alert Services Client Runtime
(ALTCLT)

UNCLASSIFIED//FOUO

ManningB_00412504

Geospatial data
management and
presentation
Geospatial data
management and
presentation
Geospatial data
management and
presentation
Geospatial data
management and
presentation

Data Movement tool

21114

17DCGSAVersion31P3
Basic Analyst Laptop-Collateral

0NCLASSIFIED//FO0O

Vender

DCN: 149015, Revi
10ctober2009
Fi^nctlon^t^oi^pon^nt

8ALSof^9re

Version

C2R

4709

GOTS/PDCS

Address Book Services

C2R Planner

1 000000

GOTS/PDCS

Address Book Services

CMP

4706

GOTS/PDCS

Common Message
Processor

DB Importer

710

Novel App Inc.

DB Importer

DCGS-A Configuration
Assistant

130
20090504

I2WD

Post clone assistant

DCGSAMFWSV31

6 2 6 1077

Overwatch

Multifunction Workstation
DCGS-AAPPFramewort^
SDK:
V1713

DCGSA^V31^Full

6.20 1035

Overwatch

Multifunction Workstation

DCGS-A Multimedia Plugin

100

BAH

Multifunction
Workstation

DCGSAWebFolderPlugin

200

BAH

Multifunotion
Workstation

DCI (DOS Client Interface)

5150

Future Skies

DCGSAWeather
IWEDA Client
Tri Seo/icelWEDA 20061129

6428

Army Research
Lab

Weather effect decision aid

DigitalTopographic Support
Systems (OTSS^90
6Rendering Package

90

Northrop
Grumman

Toprovide criticaL timely,
and accurate digital and
han:lcopy geospatial
information

DIB Client Adapter

13

CSPTech

Installerforthe Viper DIB
Client Adapter

GeoRover for ArcGIS

3 100000

SAIC

102

SAIC

325

SAIC

110

SAIC

324

SAIC

Geospatial

324

SAIC

Geospatial

4709

GOTS/PDCS

MessageTransport Protocol

GeoRover Coordinate Viewer
Extension
GeoRover Digital DataTracker
Extension
GeoRover License Manager
GeoRover LocusTrack
Extension
GeoRover ^oomTools
Extension
GroundTactical
Communication (GTCS^

L^NCLASSIFIED//FOLIO

ManningB^00412505

^eosp^tial^oftwar^ product
extensions or ^^plugins^^ to
ArcMap
Geospatial
Geospatial
Geospatial

21115

17DCGSAVer^ion31P3
BasicAnalyst Laptop Collateral

LINCLASSIFIED//FOLIO

Vendor

DCN: 149015, R e v i
10ctober2009
F^nctlon^^o^pon^nt

BAL8of^are

Veir^lon

Google Earth EC

422055730

Grid Extractor

12

12 Analyst Notebook6

6055 1022

12

12 Online Link6

6

12

12 Chart Reader6

^

12

Charts Reader

12 Chart Reader7

707

12

Charts Reader

12 Image Files

6

12

Image Editors

12 Visual Notebook

6

12

Visualisation software,
streamlines investigations

12

Image Editors

12 Spelling Checker
IIS LIRL Scan Tool

^

Google

Virtual globe, map and
geographic information

Link^Timeline Analysis
tool w/graphical
representation
12 Online ILInkisafeature
of Analysts Notebook6that
optimises online data
researchandanalys1s.lt
enables real-time access to
online data providers.

20

IME Pass Client
IMEWWF Client
^AVA^6Llpdate

1 6060

Sun Micro

Program language compiler
and environment

LiveLlpdate32

32068

Symantec

Software L^pdate Tool
Environment for building,
deploying, and running web
services and other
applications
environment for building,
deploying, and running web
services and other
applications
Environment for building,
deploying, and running web
services and other
applications

Microsoft NET Framework 3.0
SP1

3121022

Microsoft

Microsoft NET Framework 2.0
8P1

2121022

Microsoft

Microsoft.NET Frameworkt.l

1 1 4322

Microsoft

10

Microsoft

1206215 10
00

Microsoft

Electronic office tools

11 0 6 5 5 8 0

Microsoft

Allows embedding and
linking to documents

Microsoft Compressive
ClientlOforWindowXP
Microsoft Office Professional
Plus Edition 2007
Microsoft Office 2003 Web
components

0NCLASSIFIED//FOLIO

Mann1ngB^00412506

21116

17DCGSAVersion31P3
Basic Analyst Laptop Collateral

L1NCLASSIF1ED//FOLIO

Vendor

DCN: 149015, R e v i
1October2009

BAL Software

Version

Microsoft Office XP Web
components

10066190

Microsoft

Allows embedding and
linking to documents

Morula Firefox

305

Mo:2^illa

WebBrowser

MSSOLServer2005

9 2 304200

Microsoft

Database

MSSOLServer2005
Backwan:1 Compatibility

8052004

Microsoft

Database

MS SOL Server2005 Books
On-Line (English)

9 0 0 139906

Microsoft

Database

MS SOL Server Native Client

900304200

Microsoft

Database

MS SOL Server Setup Support
Files

900403500

Microsoft

Database

MS SOL ServerVSS Writer

900403500

Microsoft

Database

MS LIser Mode Driver
Framewori^ Feature Packl.O

10

Microsoft

Bu1ld^5716

MSXML60Parser

61011290

Microsoft

Text parser

MSXML4SP2

42098180

Microsoft

MSXML4SP2

4 2 0 98700

Microsoft

MSXML4SP2

42098480

Microsoft

02 Micro Smartcard Driver

2 2 6 0000

0^776 SCR CardBus

1142

PsI

12

F^nctlon^t^oi^pon^nt

Text parser

Text parser

Text parser

02 Micro
Electronics, Inc
02 Micro
Electronics, Inc.
GNO

CollaborationTool

Python

241

Open Source

Object Oriented
programming language

OuickTime

7 6 4 1773

Apple

Audio and video file player

OueryTree MFWS Plugin

138

I2WD

MFWS Plugin

Roxio Activation Module

10

Roxio

Digital Media Software

Roxio Creator Audio

350

Roxio

LINCLASSIFIED//FOLIO

ManningB^00412507

Digital Media Software

21117

17DCGSAVersion31P3
Basic Analyst Laptop Collateral

LINCLASSIFIED//FOLIO

Vendor

BAL Software

Version

Roxio Creator Copy

350

Roxio

Roxio Creator Data

350

Roxio

Roxio Creator DE

350

Roxio

Roxio Creator Tools

350

Roxio

Roxio Drag-to-Disc

91

Roxio

Roxio Express Labeler3

321

Roxio

Roxio LIpdate Manager

600

Roxio

100

Microsoft

100

Microsoft

5 1052100

SigmaTel

DCN: 149015, Revi
1October2009
I^^nction/^oiiniponent
Digital Media Software

Shared Add in Extensibility
update for MS.Net Framework
20
Shared Add-in Support LIpdate
forMSNetFramework20
SigmaTel Audio

Digital Media Software
Digital Media Software
Digital Media Software
Digital Media Software
Digital Media Software
Digital Media Software

Digital audio processing
Voice modem

Smart Link 56k Voice modem
Sonic Cine Player Decoder
Pack

420

Sonic Solutions

Symantec Antivirus

10 1 80008

Symantec

S0LXML4

900403500

Microsoft

Synaptics Pointing Device

71320

Synaptics

Pointing device

Microsoft

WebBrowser

Virus detection

Threat M a p p e r l l f o r ArcGIS
Desktop
Windows Internet Explorer720070813 185237

7 0 5730 13

Windows Media PlayerU

110

Microsoft

Media PlayerCD, DVD,
streaming ^udio^video

Windows Media F o r m a t l l
Runtime

110

Microsoft

Media Player

WindowsXPSP3

2008041403
1535

Microsoft

Win^ip

100(6685^

Xalan^Endorsed

1 000000

11

Win^ip
Computing LP
Overwatch

File compression
XML processing package

3.^ ^ossi^ie^rot^ien^sandi^n^wn^^ro^s
See ReadMe document forDCGS-AV3.1.0P3 Multi-Function Work Station (MFWS) and
Interoperability (IOP)Server,dated17February 2009,I2WDSIL

LINCLASSIFIED//FOLIO

ManningB^00412508

21118

17DCGS-A Version 3.1 P3
Basic Analyst Laptop - Collateral

UNCLASSIFIED//FOUO

DCN: 149015, Rev 1
1 October 2009

3.5 Adaptation data
Not applicable

3.6 Related Documents
3.6.1 Post Clone

Procedures

Refer FSE Training Guide in Section 2, Referenced Documents
3.6.2 Installation

Procedures

DCGS-A V3.1.0P3 Multi-Function Work Station (MFWS) and Interoperability (lOP) Server ReadMe.doc,
dated 17 February 2009,12WD SIL
DCGS-A V3.1P3, Update Image Restore ReadMe.doc, dated 1 October 2009, I2WD SIL
3.6.3 Technical

Bulletins

TB-DCGS 09-10087 - re: Wori^station vulnerabilities fixes, 17 February 2009
TB-DCGS 09-10097 - re: DISA Gold/POA&M data, 17 February 2009
NOTE: TB-DCGS 09-10087 and TB-DCGS 09-10097 were implemented in the software baseline
delivered to CTSF on 17 February 2009, and are under Application 2 server.

The following Technical Bulletins applies to the V3.1P3 SW baseline after 17 February 2009 delivery
to CTSF:
TB Number

Configuration
Systems

DOGS 09-10094

MDC

Title/Topic

PMOCGS-A
Approved

Undeployment of DIB brain Adapter and /or PW update
to xpipeline account, also adds DIB and portal versioning

11May09

DOGS 09-10095

lOP

lOP office 2007

11May09

DOGS 09-10099

MSMQ service
on BALs

Fixes problem sending USMTF and PASS messages
from BAL in standalone mode (4 March 2009)

14-May-09

APP1

Fixes APP1 homepage / baseline map problems (6
March 2009)

11May09

DOGS 09-10101

APP1

Fixes publishing Graphics to DIB problem (4 March
2009)

11May09

DOGS 09-10104

BAL

Adds Ft Hood Maps to BAL (23 March 2009)

7May-09

DOGS 09-10106

BAL

Fixes problem with SWB1 IWEDA Client (31 March
2009)

11May09

BAL & lOP

QT plugin ver1 3 8 1 update - allows working with BOTH
OIF and OEF data (09 Apnl 2009)

12May09

DCGS 09-10108

MDC

Adds Ft Huachuca Mini brain link to MDC portal (17
April 2009)

11May09

DOGS 09-10111

Fixes problem clearing the TED DB after a training event
(20 April 2009)

7May09

DCGS 09-10112A

lOP
APP1, APP2,
MDC, lOP,
BAL

Configuration Assistant Update to v l 3 0 (5 May 09)

14May-09

DCGS 09-10113

APP1

NAI fix for Firefox

11May-09

DOGS 09-.10100

DOGS 09-10107A

UNCLASSIFIED//FOUO

ManningB_00412509

21119

17DCGSAVersion31P3
BasicAnalyst Laptop Collateral

LINCLASSIFIED//FOLIO

DCN: 149015, Rev 1
1 October 2009
PM DCGS-A
Approved

TB Number

Configuration
Systems

DCGS 09-10115A

BAL

FIX for sending TED entities to Google Earth

18-May-09

DCGS 09-10116

BAL

Changing permission settings for DCGS-A User folder

7-May-09

MFWS

Allowthe operator to enter a full non-western name in
QuickForms and/or the Properties plugin without
incorrectly mapping them to middle and last name fields

DCGS 09-10120

Title/Topic

DCGS 09-10122

lOP, BAL

DCGS 09-10123

BAL

Applies to all v3 1 P3 DCGS-A DCGS lOP servers and
BALs systems It edits registry values to allow for the
workflow between Google Earth and MFWS to be
successful
Provides corrections to the DIB plug-in ofthe BAL
MFWS The TB corrects issues with the DIB usage
found in the SIL Bug Tracker

lOP, BAL

Server Vulnerability Fixes Hides DIB & Query Tree data
drivers from the users display within Google Earth

APP2

Server Vulnerability Fixes Users are unable to convert
ANB7 charts to ANB6 charts

DCGS 09-10126
DCGS 09-10128
DCGS 09-10129

Python 2 4 Win32 extensions install

28-May-09

3-Jun-09
15-Jun-09
3-Aug-09

3-Aug-09

DCGS 09-10131B

MSG, SDE

Server Vulnerability Fixes (LiSTA 0 7 5) for P3 & P5
systems (Red Hat 5 / 32 BIT)

21-Aug-09

DCGS 09-10132

BAL

Add mIRC chat to BAL baseline

24-Aug-09

DCGS 09-10133

BAL

Add correct ESRI Arc Desktop 9 2 License to Baseline for
use of Tracking Analyst

2-Sep-09

DCGS 09-10134

BAL

Firefox Flash installation

2-Sep-09

DCGS 09-10137A

JBOSS windows service fix

10-Sep-09

DCGS 09-10147

APPI
A P P I , APP2,
MDC, lOP,
BAL

Microsoft Windows Server / Workstation Vulnerability
Fixes-SAT v1 2 l b

23-Sep-09

DCGS 09-10148

BAL, lOP

MFWS Merge Relationships, Deleted Entity Manager
Updates

9-Oct-09

DCGS 09-10149A

MDC

DCGS 09-10152

BAL, lOP

DCGS 09-10153

BAL, lOP

DCGS 09-10155
DCGS 09-10157

MSG, SDE
A P P I , APP2,
lOP, MDC,
BAL

DCGS 09-10159

BAL, lOP

JBOSS windows service fix (startDIBoss.cmd /
wrapper.dll)
Removal of duplicate IIS Web folders from
C:\DCGS directory
Issues Discovered in OIF and OEF_17 Feb 09
Image
Server Vulnerability Fixes - LiSTA vO.7.7 (RHEL5 /
32 BIT) 1386
Microsoft Windows Server / Workstation
Vulnerability Fixes - SAT v l .2.1
Issues discovered in OIF and OEF (0W_P7)
This TB supersedes TB 10153

UNCLASSIFIED//FOUO

ManningB_00412510

27-Oct-09

16-Oct-09
23-Oct-09
27-Oct-09
3-NOV-09
6-NOV-09

21120

17DCGS-A Version 3.1 P3
Basic Analyst Laptop - Collateral

3.6.4

UNCLASSIFIED//FOUO

DCN: 149015, Rev 1
1 October 2009

Overwatch MFWS Release 6.2

DCGS-A V3.1, MFWS release 6.2, Document number: 102168, dated 15 January 2009, Overwatch
Textron Systems

UNCLASSIFIED//FOUO

ManningB_00412511

21121

17DCGSAVersion31P3
Basic Analyst Laptop-Collateral

LINCLASSIFIED//FOLIO

DCN: 149015, Rev 1
1 October 2009

3.7 COTS Software Sites
3D analyst (ArcGlobe)
o http://www.esri.com/software/arcqis/extensions/3danalvst/index.html
Acrobat Reader
o http://www.adobe.com
o http://www.esri.com
Analyst Notebook
o http://www.i2.co.uk
Java
o http://iava.sun.com/
Microsoft
o http://www.microsoft.com/
Netscape
o http://www.netscape.com/
Roxio
o http://roxio.com
Symantec
o http://www.svmantec.com/index.htm
Winzip
o http://www.winzip.com/
WS_FTP
o http://www.ipswitch.com/

3.8 Hardware Description
The following is a list of DCGS-A V3.1 P3 BALs hardware information:

Component

Description

Alienware Laptop - Model A51M

3.8 GHz, 2GB RAM memory, 17" display with high resolution
graphics.

Dell Laptop - Model M90

2.33 GHz Intel Dual Processor Core, 3.25GB RAM memory,
93.1 GB hard drive, with NVIDIA graphics card, DCD-RW
Optical Drive, Network Intert^ace Card and a 17 inch display with
high resolution graphics.

Laptop - Model Dell M6300

2.5 GHz Intel Core 2 Duo T9300, 4GB DDR2-667 SDRAM (2
DIMM), NVIDIA Quadro FX3600M 512 MB, 160 GB 7200RPM
Hard Drive, Std Touchpad, 8x DVD+/- & Roxio Creator, and a
17" wide screen WUXGA LCD.

Dell Precision 490 Workstation

1st Processor: Intel XEON DUAL CORE Processor 3.00GHZ,
2MB L2 Cache; 2nd Processor: Intel XEON DUAL CORE
Processor 2.80GHZ, 2MB L2 Cache; 4GB, DDR2 ECC SDRAM
Memory, 400MHZ; NVIDIA FX 4500 512MB 2 DUI OR GA
1st Hard Drive: 80GB Serial ATA 7200RPM Hard Drive
w/Databurst Cache, Non-Raid, Precision 470/670; 2nd Hard
Drive: 80GB Serial ATA 7200RPM Hard Drive with Databurst
Cache Raid; Floppy Drive: 3.5, 1.44MB; 48X/32X CD-RW/DVD

UNCLASSIFIED//FOUO

ManningB_00412512

10

21122

17DCGS-A Version 3.1 P3
Basic Analyst Laptop - Collateral

Component

UNCLASSIFIED//FOUO

DCN: 149015, Rev 1
1 October 2009

Description
Combo.

Dell Precision T5400 Desk
Top

1st Processor: Quad Core Xeon Proc X5450, 3.00GHz, 2X 6MB
L2 Cache, 1333MHz; 2nd Processor: Quad Core Xeon Proc
X5450, 3.00GHz, 2X6MB L2 Cache,1333MHz, 4GB, DDR2 ECC
SDRAM Memory 667MHz, 4X1 GB; NVIDIA Quadro FX3700
512MB dual DVI Graphics Card; 160GB SATA, 10K RPM Hard
Drive with 16MB DataBurst Cache; CD-ROM or DVD-ROM
Drive: 16X DVD+/-RW.

UNCLASSIFIED//FOUO

ManningB_00412513

11

21123

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

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DEFENSE REQUEST FOR
SEARCH TERMS OF
RELEVANT COMPUTERS

DATED: 30 March 2012

1. The Defense, in consultation with its computer forensic experts, requests the following
additional search terms1:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
l)
m)
n)
o)
p)
q)
r)
s)
t)

M-IRC Chat2
Wget
Internet Download Manager
Virtual DJ
Free YouTube Downloader
VLC Media Player
UMPlayer
UTorrent
IrfanView
Paint.NET
GEOTRANS
Grid Extractor
Google Earth
Picasa
XnView
GIMP
ubuntu
Skype
Any-Video-Converter
RoboForm

1

The Defense incorporate the Court’s Order to search for Wget, M-IRC Chat, Google Earth, movies, games, and
music. By submitting this list, the Defense does not waive its request for a more detailed search as referenced in the
Defense Renewal of Motion to Compel Discovery of Computers also dated 30 March 2012. The Defense also does
not concede that this limited search complies with either R.C.M. 701(a)(2) or R.CM. 701(a)(6).
2
The Defense requests that the Government provide the software version of each identified program. For instance,
M-IRC Chat, if there are multiple versions of this single program on the various computers, the Defense requests
that the Government list each version found. A specific version of software may have been authorized on the
DCGS-A, while newer versions were not. Thus, the Defense needs the exact version found during the
Government’s review.

1

21124

u) BitTorrent
v) Applian FLV Media Player
w) Yahoo Messenger
x) Windows Live Messenger
y) AIMP
z) Pidgin
aa) Digsby
bb) Thunderbird
cc) iTunes
dd) Songbird
ee) Spotify
ff) Winamp
gg) Google Talk
hh) RealPlayer
ii) Media Player Classic
jj) Foxit Reader
2. The point of contact for this memorandum is the undersigned at (b)(6)
at (b)(6)
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

2

or by e-mail

21125

UNITED STATES OF AMERICA
v.
Manning, Bradley E.
PFC, U.S. Anny,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

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Prosecution Notification
to the Court

20

The United States responds to the Court's Order, dated 23 March

April 2012

2012 as follows:

1. Hard Drive Searches. The Computer Crimes Investigative Unit (CCIU) conducted a review
pursuant to the Court's order. Based on input from the government security expert, the United
States could not determine the classification of 460 filenames in Attachment 4 b ecause they were
written in Arabic; therefore, this information has been redacted from the attachment. 1 Below is a
summary of their findings and attached are the Agent's Investigation Reports:
a.

Of the fourteen hard drives, only four were found to contain valid file systems, the

remaining drives were blank, contained no accessible data, or were inoperable.
b.

The VLC application was installed on Items

1 and 11.

c.

The M-IRC application was installed in several locations on Items

d.

The Media Player Classic application was installed on Item 11.

e.

Audio and video files of apparent entertainment values were identified on the examined

1 and 11.

Images.

2. The prosecution contacted the DOS, FBI, CIA, DIA, and ONCIX to determine whether these
agencies contain any forensic results or investigative files relevant to this case?

(1) DOS. DOS has forensic results and investigative files. The United States reviewed
this information for evidence that is favorable to the accused and material to either guilt or
punishment. Additionally, prior to the Court's order, the United States produced this information
to the defense.

(2) FBI. FBI has forensic results and investigative files. The United States is reviewing
this information for evidence that is favorable to the accused and material to either guilt or
1

The United States is diligently working to determine who can provide translation of these Arabic

names.
2

On 16 April 2012, the Court granted the Gov enunent's motion for leave of the Court to extend the time

to respond from 20 April 2012 to 2 May 2012 as to whether the CIA will release classified information in
original form, provide for limited disclosure under MRE 505(g)(2), or invoke the classified information
privilege under MRE 505(c).

1

21126

ptmislunent. Additionally, prior to the Court's order, the United States started producing this
information to the defense.

(3) DIA. DIA does not have any forensic results or investigative files.
(4) ONCIX. ONCIX does not have any forensic results or investigative files.
3. At this time, the United States anticipates that the FBI is the only government entity that is a
custodian of classified forensic resuhs or investigative files relevant to this case that will seek
limited disclosure lAW MRE 505(gX2).

~

ASHDENFEIN
MAJ, JA
Trial Counsel

2

21127

Appellate Exhibit 56
Attachments
252 pages
ordered sealed for Reason 6
Military Judge's Seal Order
dated 20 August 2013
stored in the original Record
of Trial

21128

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

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DEFENSE MOTION TO DISMISS
BASED UPON UNREASONABLE
MULTIPLICATION OF
CHARGES
DATED: 29 March 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by counsel, pursuant to applicable case law, requests this Court to
dismiss and/or consolidate several specifications because, as charged by the Government, they
constitute an unreasonable multiplication of charges. The Defense submits that the Government
has unreasonably multiplied the charges against PFC Manning by charging violations of multiple
provisions of Title 18 of the United States Code for conduct that should only be charged, if at all,
as a violation of one provision of Title 18. Additionally, the Government has unreasonably
multiplied the charges against PFC Manning by breaking down single transactions into multiple
specifications each.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. The Defense, as the moving party, bears the burden of this motion by a preponderance of the
evidence pursuant to R.C.M. 905(c)(1) and (2).
FACTS
3. PFC Manning is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of conduct prejudicial to good order and
discipline and service discrediting, eight specifications of communicating classified information,
five specifications of stealing or knowingly converting government property, and two
specifications of knowingly exceeding authorized access to a government computer, in violation
of Articles 92, 104, and 134, Uniform Code of Military Justice (UCMJ) 10 U.S.C. §§ 892, 904,
934 (2010). The case has been referred to a general court martial by the convening authority
with a special instruction that the case is not a capital referral.
4. In Specification 4 of Charge II, PFC Manning is alleged to have, “at or near Contingency
Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or about 5
1

21129

January 2010,” stolen, purloined, or knowingly converted “the Combined Information Data
Network Exchange Iraq database containing more than 380,000 records belonging to the United
States Government,” in violation of 18 U.S.C. Section 641 and Article 134. In Specification 5 of
the same charge, it is alleged that PFC Manning, having unauthorized possession of classified
Combined Information Data Network Exchange Iraq database records, did, at the same place
specified in Specification 4 between on or about 31 December 2009 and on or about 9 February
2010, willfully communicate, deliver, transmit, or cause to be communicated, delivered or
transmitted, these records to a person not entitled to receive them with reason to believe that the
records could be used to the injury of the United States or to the advantage of any foreign nation,
in violation of 18 U.S.C. Section 793(e) and Article 134.
5. In Specification 6 of Charge II, PFC Manning is alleged to have, “at or near Contingency
Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or about 8
January 2010,” stolen, purloined, or knowingly converted “the Combined Information Data
Network Exchange Afghanistan database containing more than 90,000 records belonging to the
United States Government,” in violation of Section 641 and Article 134. Additionally, in
Specification 7 of the same charge, it is alleged that PFC Manning, having unauthorized
possession of classified records contained on the Combined Information Data Network Exchange
Afghanistan database, did, at the same place specified in Specification 6 between on or about 31
December 2009 and on or about 9 February 2010, willfully communicate, deliver, transmit, or
cause to be communicated, delivered or transmitted, these records to a person not entitled to
receive them with reason to believe that the records could be used to the injury of the United
States or to the advantage of any foreign nation, in violation of Section 793(e) and Article 134.
6. In Specification 8 of Charge II, PFC Manning is alleged to have, “at or near Contingency
Operating Station Hammer, Iraq, on or about 8 March 2010,” stolen, purloined, or knowingly
converted “a United States Southern Command database containing more than 700 records
belonging to the United States Government,” in violation of Section 641 and Article 134.
Specification 9 of the same charge alleges that PFC Manning, having unauthorized possession of
classified records contained on the database specified in Specification 8, did, at the same place
specified in Specification 8 between on or about 8 March 2010 and on or about 27 May 2010,
willfully communicate, deliver, transmit, or cause to be communicated, delivered or transmitted,
these records to a person not entitled to receive them with reason to believe that the records
could be used to the injury of the United States or to the advantage of any foreign nation, in
violation of Section 793(e) and Article 134.
7. In Specification 12 of Charge II, PFC Manning is alleged to have, “at or near Contingency
Operating Station Hammer, Iraq, between on or about 28 March 2010 and on or about 4 May
2010,” stolen, purloined, or knowingly converted “the Department of State Net-Centric
Diplomacy database containing more than 250,000 records belonging to the United States
Government,” in violation of Section 641 and Article 134. Specification 13 of the same charge
alleges that PFC Manning, at the same place specified in Specification 12 between on or about
28 March 2010 and on or about 27 May 2010, knowingly exceeded his authorized access on a
Secret Internet Protocol Router computer, obtained classified Department of State cables
determined to require protection against unauthorized disclosure, and willfully communicated,
delivered, transmitted, or caused to be communicated, delivered, or transmitted, these cables to a
2

21130

person not entitled to receive them with reason to believe that these cables so obtained could be
used to the injury of the United States, in violation of 18 U.S.C. Section 1030(a)(1) and Article
134.
8. In Specification 10 of Charge II, it is alleged that PFC Manning, having unauthorized
possession of classified records relating to a military operation in Farah Province, Afghanistan
occurring on or about 4 May 2009, did, “at or near Contingency Operating Station Hammer,
Iraq, between on or about 11 April 2010 and on or about 27 May 2010,” willfully communicate,
deliver, transmit, or cause to be communicated, delivered or transmitted, these records to a
person not entitled to receive them with reason to believe that the records could be used to the
injury of the United States or to the advantage of any foreign nation, in violation of Section
793(e) and Article 134.
9. In Specification 11 of Charge II, it is alleged that PFC Manning, having unauthorized
possession of a file containing a video relating to the national defense, did, “at or near
Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or
about 8 January 2010,” willfully communicate, deliver, transmit, or cause to be communicated,
delivered or transmitted, this file to a person not entitled to receive it with reason to believe that
the file could be used to the injury of the United States or to the advantage of any foreign nation,
in violation of Section 793(e) and Article 134.
WITNESSES/EVIDENCE
10. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this Court to consider the following evidence in support of the Defense’s
motion.
a. Charge Sheet;
b. Continuation of DD Form 457;
c. SD Card Forensic Report, Bates # 00125319-31, at 1-2, 9 (provided as a classified
enclosure by the Government);
d. PFC Manning’s Primary SIPRNET Computer Forensic Report, Bates # 00211037110, at 51-52 (provided as a classified enclosure by the Government);
e. PFC Manning’s Personal Computer Forensic Report, Bates # 00124283-362, at 49,
54-58, 65-68. (provided as a classified enclosure by the Government).
LEGAL AUTHORITY AND ARGUMENT
11. The Manual for Courts-Martial (MCM) directs that “[w]hat is substantially one transaction
should not be made the basis for an unreasonable multiplication of charges against one person.”
3

21131

Rule for Court-Martial 307(c)(4). “[T]he prohibition against unreasonable multiplication of
charges addresses those features of military law that increase the potential for overreaching in the
exercise of prosecutorial discretion.” United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001).
12. The Court of Appeals for the Armed Forces has set forth a five factor test for assessing
claims of unreasonable multiplication of charges:
(1) Did the accused object at trial that there was an unreasonable multiplication
of charges and/or specifications?
(2) Is each charge and specification aimed at distinctly separate criminal acts?
(3) Does the number of charges and specifications misrepresent or exaggerate the
[accused’s] criminality?
(4) Does the number of charges and specifications unreasonably increase the
[accused’s] punitive exposure?
(5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of
the charges?
United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004); see Quiroz, 55 M.J. at 338-39
(articulating these five factors). The Court has further instructed that “[t]hese factors must be
balanced, with no single factor necessarily governing the result.” Pauling, 60 M.J. at 95. Where
a trial court finds an unreasonable multiplication of charges, dismissal of the unreasonably
multiplied charges is an available remedy. United States v. Roderick, 62 M.J. 425, 433
(C.A.A.F. 2006). Consolidation of the unreasonably multiplied charges is also a remedy
available to the trial court. United States v. Gilchrist, 61 M.J. 785, 789 (A. Ct. Crim. App.
2005). In any event, once an unreasonable multiplication of charges is shown, “it [is] incumbent
on the trial judge . . . either to consolidate the specifications or to dismiss a specification[.]”
United States v. Burris, 21 M.J. 82, 82 (C.M.A. 1985).
13. When analyzed under this five factor test, the Government’s drafting of several
specifications in the instant case has run afoul of the prohibition against unreasonable
multiplication of charges. First, multiple specifications of Charge II allege violations of either
Section 641 or Section 793(e). In several such instances, the same transaction has been split into
a Section 641 specification and a Section 793(e) specification. This creative drafting by the
Government drastically exaggerates PFC Manning’s criminality and unreasonably increases his
punitive exposure. Second, Specifications 12 and 13 of Charge II charge violations of Sections
641 and 1030(a)(1), respectively. However, the alleged conduct behind these two charged
offenses constitutes only one transaction. By splitting this conduct into two separate offenses,
the Government has again unreasonably multiplied the charges against PFC Manning. Finally,
several different specifications of Charge II allege violations of either Sections 641, 793(e), or
1030(a)(1). Yet the alleged conduct behind several of these specifications occurred in the same
transaction on the same day. The Government has again sought to exaggerate PFC Manning’s
criminality and increase his punitive exposure by creatively separating one transaction into
4

21132

multiple specifications. Each instance of unreasonable multiplication of charges is discussed in
turn.
A.

The Government Unreasonably Multiplied the Charges Against PFC Manning by
Repeatedly Splitting the Same Transaction Into One Specification Alleging a
Violation of Section 641 and One Specification Alleging a Violation of Section 793(e)

14. The Defense submits that the Government unreasonably multiplied the charges against PFC
Manning by splitting one transaction into two specifications: one alleging a violation of Section
641 and one alleging a violation of Section 793(e). The conduct underlying a particular Section
641 violation cannot be logically separated from the conduct underlying the corresponding
Section 793(e) violation. In maintaining this artificial distinction in these specifications, the
Government has exaggerated PFC Manning’s criminality and unreasonably increased his
punitive exposure. Moreover, the Government has unreasonably multiplied charges against PFC
Manning in this manner three separate times in Charge II.
15. Specifications 4 and 5 of Charge II allege that PFC Manning violated Sections 641 and
793(e), respectively, when he stole, purloined, or knowingly converted the Combined
Information Data Network Exchange Iraq database and then disclosed certain classified records
on that database to a person not entitled to receive those records. These specifications deal with
the same transaction – PFC Manning’s alleged unauthorized possession and disclosure of the
Combined Information Data Network Exchange Iraq database records.
16. Additionally, Specifications 6 and 7 of Charge II allege that PFC Manning violated Sections
641 and 793(e), respectively, when he stole, purloined or knowingly converted the Combined
Information Data Network Exchange Afghanistan database and then impermissibly disclosed
certain classified records on that database. Like Specifications 4 and 5, Specifications 6 and 7 of
Charge II deal with the same transaction – PFC Manning’s alleged unauthorized possession and
disclosure of the Combined Information Data Network Exchange Afghanistan database records.
17. Finally, Specifications 8 and 9 of Charge II allege that PFC Manning violated Sections 641
and 793(e), respectively, when he stole, purloined or knowingly converted a United States
Southern Command database and then impermissibly disclosed certain classified records on that
database. These specifications also attempt to target one transaction – the alleged unauthorized
possession and disclosure of the records on a United States Southern Command database.
18. Application of the five factor test for unreasonable multiplication of charges demonstrates
that the Government has unreasonably multiplied the charges against PFC Manning by drafting
these specifications:
a. First, this motion serves as PFC Manning’s objection to the unreasonable multiplication of
charges, so this factor must be resolved in his favor. See United States v. Paxton, 64 M.J. 484,
491 (C.A.A.F. 2007).

5

21133

b. Second, these specifications are not directed at distinctly separate acts. See Quiroz, 55
M.J. at 338. Taking Specifications 4 and 5 as an example, the alleged conduct behind these two
specifications cannot logically be separated in the manner the Government has attempted.
Before PFC Manning could have secured unauthorized possession of the relevant database
records and before he could disclose these records, see 18 U.S.C. § 793(e), he first needed to
secure possession of these records. In order to secure possession of these materials, PFC
Manning, according to the Government, stole, purloined, or knowingly converted the database on
which these materials were stored. Therefore, under the Government’s theory, PFC Manning
could not gain unauthorized possession of the records he allegedly disclosed without first
stealing, purloining, or knowingly converting the database. The Section 641 violation charged in
Specification 4 was simply the first step in the transaction that was the alleged Section 793(e)
violation charged in Specification 5; without the theft or conversion of the database, there could
be no unauthorized possession of the records. The Navy-Marine Court of Military Review’s
decision in United States v. Johnson is instructive. In Johnson, the accused failed to inform the
Personal Support Detachment that he was no longer entitled to receive Basic Allowance for
Quarters (BAQ) and Variable Housing Allowance (VHA). 39 M.J. 707, 708-10 (N-M.C.M.R.
1993). He continued to receive BAQ and VHA to which he was not entitled for eight months.
Id. at 711. The Government elected to charge the accused with eight specifications of larceny of
BAQ and VHA, one specification for each month of the accused’s improper receipt of BAQ and
VHA. Id. On appeal, the accused argued that this represented an unreasonable multiplication of
charges. Id. The court agreed, explaining that “[w]hat happened here was essentially a single
course of theft of Government funds over an extended period and not eight thefts. Therefore, the
eight specifications shall be merged into one.” Id.; see also Burris, 21 M.J. at 82 (finding an
unreasonable multiplication of charges where “substantially one transaction” – the accused’s
false statements on two forms in his application for base housing – was charged as two separate
specifications). Similarly, Specifications 4 and 5 in the instant case are not directed at distinctly
separate acts. Rather, like the eight specifications in Johnson that were directed at a single
course of theft, see 39 M.J. at 711, Specifications 4 and 5 are directed at a single course of
alleged conduct. The same can be said for Specifications 6 and 7 of Charge II and for
Specifications 8 and 9 of Charge II. Therefore, the second factor must also be resolved in PFC
Manning’s favor.
c. Third, the number of specifications misrepresent and exaggerate PFC Manning’s
criminality. See Quiroz, 55 M.J. at 338. One transaction – the Section 793(e) violation requiring
unauthorized possession and disclosure of classified records – has been made the subject of two
specifications through the Government’s expansive charging in Specifications 4 and 5. The
Government has repeated this duplication effort with respect to Specifications 6 and 7 and with
respect to Specifications 8 and 9. Moreover, there are numerous other instances where the
Government has similarly separated other transactions into two separate specifications in Charge
II. See Argument, Parts B & C, infra.
d. Fourth, this overcharging unreasonably increases PFC Manning’s punitive exposure. See
Quiroz, 55 M.J. at 338-39. Congress has provided that the maximum punishment for a violation
of Section 793(e) is imprisonment for ten years. 18 U.S.C. § 793(e). Similarly, the maximum
punishment for a violation of Section 641 is also ten years. Id. § 641. Congress could have cross
referenced Sections 641 and 793(e), but it chose not to do so. If the Government is permitted to
6

21134

maintain both Specifications 4 and 5, the maximum punishment for one transaction – an
unauthorized possession and disclosure under Section 793(e) – would become twenty years
instead of the ten years that Congress chose. Doubling the punitive exposure for one transaction
is plainly unreasonable. See United States v. Quiroz, 57 M.J. 583, 586 (N-M. Ct. Crim. App.
2002), on remand from, 55 M.J. 334 (C.A.A.F. 2001). Indeed, the Navy-Marine Court of
Criminal Appeals confronted a similar doubling of the punitive exposure of an accused in
Quiroz:
By charging [Quiroz] twice for the sale of the same C-4, the prosecution
magnified the extent of his criminal activity and increased the maximum
permissible confinement for this sale from 10 years to 20 years . . . . The doubling
of [Quiroz’s] punitive exposure by 10 years is a significant increase that does not
appear to be warranted by anything in the record. We, therefore, find that the
charges in question did unreasonably increase [Quiroz’s] punitive exposure.
Id. Here, as in Quiroz, the Government is attempting to double PFC Manning’s punitive
exposure by artificially splitting one act into two offenses. Additionally, the United States
Supreme Court has instructed that the concept of “punishment” encompasses not only the
imposition of sentence, but the actual conviction as well. Ball v. United States, 470 U.S. 856,
861, 864-65 (1985). Therefore, if the Government’s expansive charging is permitted, PFC
Manning could be subjected to twice as many convictions and twice as much punishment for
what is substantially one Section 793(e) violation. The same can be said for the Government’s
drafting of Specifications 6 and 7 and Specifications 8 and 9.
e. Finally, there is evidence of prosecutorial overreaching and abuse in the drafting of the
specifications. Charge II itself demonstrates the existence of prosecutorial overreaching. The
Government has on three occasions sought to separate one transaction – a violation of Section
793(e) by unauthorized possession and disclosure of classified information – into two offenses.
Moreover, the Government has similarly broken down other transactions into their component
parts as well. See Argument, Parts B & C, infra. The reason for this unnatural breakdown of
these transactions is obvious: the division serves no purpose other than to pile on the charges
against PFC Manning in order to increase the likelihood of a severe sentence if he is convicted.
This is precisely the type of overreaching that the prohibition against unreasonable multiplication
of charges is intended to guard against. See Quiroz, 55 M.J. at 337. Additionally, in
Specifications 4, 6, and 8 of Charge II, the Government has pushed Section 641 to the edge of its
permissible application. Congress has legislated comprehensively in the field of information
relating to the national defense. It has enacted Section 793(e), which punishes whoever, having
unauthorized possession of information relating to the national defense, willfully discloses that
information with reason to believe that the information could be used to the injury of the United
States or to the advantage of a foreign nation. 18 U.S.C. § 793(e). It has also enacted Section
1030(a)(1), which punishes whoever exceeds authorized access to a computer, obtains covered
information relating to the national defense or foreign relations, and willfully discloses that
information with reason to believe that the information could be used to the injury of the United
States or to the advantage of any foreign nation. Id. § 1030(a)(1). Some judges have expressed
doubts over whether Section 641 can even be applied to information relating to the national
defense without seriously disrupting this comprehensive framework established by Congress.
7

21135

See United States v. Truong Dinh Hung, 629 F.2d 908, 926 (4th Cir. 1980) (opinion of Winter,
J.) (“If [Section] 641 were extended to penalize the unauthorized disclosure of classified
information, it would greatly alter this meticulously woven fabric of criminal sanctions.”); id. at
928 (“[B]ecause a criminal prohibition against the unauthorized disclosure of classified
information would be inconsistent with the existing pattern of criminal statutes governing the
disclosure of classified information and because Congress has always refused to enact a statute
like [Section] 641 applicable to the disclosure of classified information . . . [Section] 641 cannot
be interpreted to punish the unauthorized disclosure of classified information.”); see also United
States v. Jeter, 775 F.2d 670, 682 (6th Cir. 1985) (“We do not attempt to determine the
constitutionality of Section 641 in a ‘Pentagon Papers’ type of situation.”). The fact that the
Government in this case has elected to use Section 641 in this gray area to increase the charges
against PFC Manning for what is really only an alleged Section 793(e) violation is further
evidence of prosecutorial overreaching and abuse in the drafting of these specifications.
19. Therefore, this Court should determine that: Specifications 4 and 5 of Charge II constitute an
unreasonable multiplication of charges; Specifications 6 and 7 of Charge II constitute an
unreasonable multiplication of charges; and Specifications 8 and 9 of Charge II constitute an
unreasonable multiplication of charges. Accordingly this Court should dismiss Specifications 4,
6, and 8 of Charge II.
B.

The Government Unreasonably Multiplied the Charges Against PFC Manning by
Splitting the Same Transaction into One Specification Alleging a Violation of
Section 641 and One Specification Alleging a Violation of Section 1030(a)(1)

20. The Defense further submits that the Government again unreasonably multiplied the charges
against PFC Manning by splitting one other alleged transaction into two separate specifications:
one alleging a violation of Section 641 and one alleging a violation of Section 1030(a)(1).
Specifications 12 and 13 of Charge II allege that PFC Manning violated Sections 641 and
1030(a)(1), respectively, when he stole, purloined, or knowingly converted the Department of
State Net-Centric Diplomacy database and then disclosed certain classified records on that
database to a person not entitled to receive those records. These specifications deal with the
same transaction – PFC Manning’s alleged exceeding authorized access to obtain the Department
of State Net-Centric Diplomacy database records and his subsequent disclosure of them. These
specifications constitute an unreasonable multiplication of charges:
a. First, this motion serves as PFC Manning’s objection to the unreasonable multiplication of
charges, so this factor must be resolved in his favor. See Paxton, 64 M.J. at 491.
b. Second, Specifications 12 and 13 are not directed at distinctly separate acts. See Quiroz,
55 M.J. at 338. The alleged conduct constituting PFC Manning’s Section 641 violation is
identical to the first step in the charged Section 1030(a)(1) violation – exceeding authorized
access and thereby obtaining covered information. Under the Government’s theory, before he
could wilfully disclose information covered by Section 1030(a)(1), PFC Manning was first
required to exceed authorized access to a computer and to obtain covered information. How did
PFC Manning accomplish these necessary prerequisite steps? According to the Government, it
8

21136

was by and through his theft or knowing conversion of the Department of State Net-Centric
Diplomacy database. In other words, PFC Manning’s alleged theft or conversion of the database
was the alleged exceeding of his authorized access and the obtainment of covered information,
all rolled into one. Therefore, far from targeting distinctly separated acts in Specifications 12
and 13, the Government has artificially broken down one act into two offenses. See Burris, 21
M.J. at 82; Johnson, 39 M.J. at 711.
c. Third, Specifications 12 and 13 misrepresent and exaggerate PFC Manning’s criminality.
See Quiroz, 55 M.J. at 338. One alleged transaction – the Section 1030(a)(1) violation requiring
exceeding authorized access, obtainment of covered information, and disclosure of that
information – has been made the subject of two specifications through the Government’s
expansive charging in Specifications 12 and 13. When this effort to exaggerate PFC Manning’s
criminality is coupled with the several other instances of unreasonable multiplication of charges,
see Argument, Part A, supra, and Part C, infra, the effort to misrepresent and exaggerate his
criminality is manifest.
d. Fourth, this overcharging unreasonably increases PFC Manning’s punitive exposure. See
Quiroz, 55 M.J. at 338-39. Congress has provided that the maximum punishment for a violation
of Section 1030(a)(1), as charged by the Government in this case, is imprisonment for ten years.
18 U.S.C. § 1030(c)(1)(A). Similarly, the maximum punishment for a violation of Section 641 is
also ten years. Id. § 641. Congress could have cross referenced Sections 641 and 1030 (a)(1),
but it chose not to do so. If the Government is permitted to maintain both Specifications 12 and
13, the maximum punishment for one transaction – exceeding authorized access, obtaining
covered information, and disclosing it in violation of Section 1030(a)(1) – would become twenty
years instead of the ten years that Congress chose. Doubling the available maximum punishment
in this manner is, for the reasons discussed by the Navy-Marine Court of Criminal Appeals in
Quiroz, a textbook example of unreasonably increasing an accused’s punitive exposure. See
Quiroz, 57 M.J. at 586; see also Argument, Part A, supra. Moreover, the mere attempt to secure
an extra conviction for this one transaction also increases PFC Manning’s punitive exposure.
See Ball, 470 U.S. at 861, 864-65.
e. Finally, there is evidence of prosecutorial overreaching and abuse in the way in which
Specifications 12 and 13 have been drafted. This overreaching and abuse is plainly evident from
the purpose and effect of charging one transaction – the alleged Section 1030(a)(1) violation – as
two separate offenses. It is clear that both the purpose and effect of this artificial splitting of one
offense into two is to pile on the charges against PFC Manning to exaggerate his criminality and
increase his punitive exposure. Moreover, the Government has similarly broken down other
single transactions into separate specifications. See Argument, Part A, supra, and Part C, infra.
This is precisely the type of prosecutorial overreaching that the prohibition against unreasonable
multiplication of charges is intended to guard against. See Quiroz, 55 M.J. at 337. Additionally,
the prosecutorial overreaching and abuse is similarly evident from the Government’s decision to
charge a Section 641 violation for the use of a computer to obtain information covered by
Section 1030(a)(1). As Professor Orin Kerr has observed, because Section 641 is such an
awkward tool to combat misuse of a computer to obtain information on the computer, Congress
passed Section 1030:

9

21137

Because no res can be defined in the great majority of cases, [Section] 641 is an
ill-suited tool to try to deter unauthorized use of federal government computer
systems.
Conversion’s inability to serve as a useful doctrinal tool to deter unauthorized
computer use has led to a number of federal and state statutory measures to meet
this important need. The Computer Fraud and Abuse Act [, 18 U.S.C. Section
1030,] punishes a broad range of computer crimes. These crimes include the
unauthorized access and procurement of classified national defense data by
computer[.]
Orin S. Kerr, Note, The Limits of Computer Conversion: United States v. Collins, 9 Harv. J.L. &
Tech. 205, 211 (1996) (footnotes omitted). Therefore, just as the Government has pushed
Section 641 to its limit by charging PFC Manning with Section 641 violations for his alleged
Section 793(e) violations, see Argument Part A, supra, the Government has here elected to use
Section 641, an ill-suited tool for deterring computer misuse, in conjunction with Section
1030(a)(1), a provision enacted to rectify the deficiencies of using Section 641 to combat
computer misuse. See Kerr, supra, at 211. This redundancy in charging is no accident; it
represents clear evidence that the Government has sought to charge PFC Manning with any
violation that could, by stretching the imagination, fit his alleged conduct. The doctrine of
unreasonable multiplication of charges prevents the Government from piling on in this manner
any and all conceivable charges. See Quiroz, 55 M.J. at 337.
21. For these reasons, this Court should determine that Specifications 12 and 13 of Charge II
constitute an unreasonable multiplication of charges and should accordingly dismiss
Specification 12 of Charge II.
C.

The Government Unreasonably Multiplied the Charges Against PFC Manning by
Splitting the Same Transaction that Occurred on the Same Day into Multiple
Specifications

22. The Defense submits that for several specifications the Government has unreasonably
multiplied the charges against PFC Manning by splitting a single transaction that occurred on the
same day into multiple specifications. The Government has done this on two occasions in
Charge II. Each instance of unreasonable multiplication of charges is discussed in turn.
The Conduct Alleged in Specifications 4, 5, 6, and 7 of Charge II Constitutes a Single
Transaction Committed on the Same Day
23. Specifications 4 and 5 of Charge II allege that PFC Manning violated Sections 641 and
793(e), respectively, when he stole, purloined, or knowingly converted the Combined
Information Data Network Exchange Iraq database and then disclosed certain classified records
on that database to a person not entitled to receive those records. Additionally, Specifications 6
and 7 of Charge II allege that PFC Manning violated Sections 641 and 793(e), respectively,
10

21138

when he stole, purloined or knowingly converted the Combined Information Data Network
Exchange Afghanistan database and then impermissibly disclosed certain classified records on
that database. The conduct alleged in all four of these specifications occurred on the same day.1
24. Additionally, the disclosures of the Combined Information Data Network Exchange Iraq
database records and the Combined Information Data Network Exchange Afghanistan database
records occurred at the same time. See footnote 1. Therefore, PFC Manning committed, at most,
one Section 793(e) violation in disclosing these records. The Government, however, has
attempted to charge this one violation as four violations – two Section 641 violations
(Specifications 4 and 6) and two Section 793(e) violations (Specifications 5 and 7). This
multiplication of charges is unreasonable:
a. First, this motion serves as PFC Manning’s objection to the unreasonable multiplication of
charges, so this factor must be resolved in his favor. See Paxton, 64 M.J. at 491.
b. Second, Specifications 4, 5, 6 and 7 are directed at the same conduct; they are not directed
at distinctly separate acts. See Quiroz, 55 M.J. at 338. For reasons discussed above, the Section
641 violations alleged in Specifications 4 and 6 are unreasonable multiplications of the Section
793(e) violations alleged in Specifications 5 and 7, respectively. See Argument, Part A, supra.
Additionally, the alleged disclosure of records from the Combined Information Data Network
Exchange Iraq database targeted in Specification 5 and the alleged disclosure of records from the
Combined Information Data Network Exchange Afghanistan database targeted in Specification 7
took place at the same time on the same day. In other words, there were not two disclosures, as
Specifications 5 and 7 would lead one to believe, but only one disclosure of records from both
databases. Therefore, the Government, in drafting Specifications 4, 5, 6 and 7, has taken the
conduct behind a single disclosure and made it subject to four separate specifications. The Army
Court of Criminal Appeals’ decision in Gilchrist is instructive. In Gilchrist, the accused entered
another’s room and stole $60.00 cash and some Xanax pills worth about $20.00. 61 M.J. at 788.
The Government charged the larceny of the cash as one specification and the larceny of the pills
as another specification. Id. The Gilchrist Court unanimously found this to be an unreasonable
multiplication of charges. Id. at 789. The court concluded that the larceny of the cash and the
larceny of the pills were parts of a single larceny, and only a single larceny should have been
charged. Id. The court quoted from the MCM as follows: “When a larceny of several articles is
committed at substantially the same time and place, it is a single larceny even though the articles
belong to different persons. Thus, if a thief . . . goes into a room and takes property belonging to
various persons, there is but one larceny . . . .” Id. (quoting MCM, Part IV, para. 46(c)(1)(h)(ii))
(ellipses in original). Elaborating on this point, the court explained that “specifications constitute
an unreasonable multiplication of charges as a matter of policy when . . . what is substantially
one transaction is unreasonably broken down into its component parts and charged separately.”
Id. at 789 n.5; see also Burris, 21 M.J. at 82; United States v. Box, 2009 WL 6865266, at *1 (A.
Ct. Crim. App. Feb 27, 2009) (unpublished) (finding an unreasonable multiplication of charges
where accused stole three items from a gym locker and Government drafted two specifications
for this single theft); United States v Thomas, 2008 WL 8084967, at *1 (A. Ct. Crim. App. April
30, 2008) (unpublished) (finding an unreasonable multiplication of charges where accused stole
a laptop and a cell phone from the same victim and Government charged the larceny of the
1

See SD Card Forensic Report, Bates # 00125319-31, at 1-2, 9.

11

21139

laptop in one specification and the larceny of the cell phone in a separate specification); cf.
Johnson, 39 M.J. at 711 (finding a single course of theft spanning eight months as opposed to
eight separate thefts). In this case, the Government has run afoul of this prohibition in drafting
Specifications 4, 5, 6, and 7 of Charge II. Just as the Government in Gilchrist impermissibly
broke down a single larceny into two separate larcenies, see 61 M.J. at 788-89, the Government
here has impermissibly broken down an alleged single disclosure of multiple records (i.e. a
single violation of Section 793(e)) into two separate disclosures (i.e. two separate violations of
Section 793(e)). Compounding this problem, the Government has further broken down each of
these two alleged violations of Section 793(e) into two even smaller parts: one violation of
Section 641 and one violation of Section 793(e). See Argument, Part A, supra. Thus, the
Government in this case has broken down a single disclosure into four separate violations.
Gilchrist plainly forbids such a balkanization of a single transaction. See 61 M.J. at 788-89.
c. Third, the breaking down of one transaction into four specifications in this manner
misrepresents and exaggerates PFC Manning’s criminality. See Quiroz, 55 M.J. at 338. A single
disclosure has been made the subject of four specifications.
d. Fourth, this overcharging unreasonably increases PFC Manning’s punitive exposure. See
Quiroz, 55 M.J. at 338-39. Instead of facing a maximum ten year sentence for his alleged
Section 793(e) violation (the single disclosure), PFC Manning faces four specifications, each
containing a ten year maximum punishment. See 18 U.S.C. § 641 (containing maximum
punishment of ten years imprisonment); id. § 793(e) (same). Thus, the Government has
quadrupled PFC Manning’s punitive exposure for this one alleged disclosure by creatively
charging it as four specifications instead of one. If doubling an accused’s punitive exposure is
unreasonable, see Quiroz, 57 M.J. at 586, surely quadrupling an accused’s punitive exposure is
even more unreasonable.
e. Finally, the Government’s decision to multiply a single disclosure into four specifications
readily demonstrates prosecutorial overreaching and abuse. Both the purpose and effect of this
artificial splitting of one offense into four is to unnecessarily pile on the charges against PFC
Manning to exaggerate his criminality and increase his punitive exposure. Preventing this
prosecutorial overreaching is the main concern of the principle of unreasonable multiplication of
charges. See Quiroz, 55 M.J. at 337.
25. For these reasons, this Court should determine that Specifications 4, 5, 6, and 7 of Charge II
constitute an unreasonable multiplication of charges. Accordingly, this Court should dismiss
Specifications 4 and 6 of Charge II, see Argument Part A, supra, and should consolidate
Specifications 5 and 7 of Charge II into a single specification.
The Conduct Alleged in Specifications 10 and 11 of Charge II Constitute a Single Transaction
Committed on the Same Day
26. Specification 10 of Charge II alleges that PFC Manning impermissibly disclosed certain
classified records in violation of Section 793(e). Specification 11 of Charge II alleges that PFC

12

21140

Manning impermissibly disclosed a video relating to the national defense in violation of Section
793(e).
27. Though the Government alleges different date ranges for these two disclosures, in reality the
classified records and the video were disclosed at the same time on the same day, 11 April 2010.2
Therefore, the conduct alleged in Specifications 10 and 11 constitutes a single disclosure. The
Government’s attempt to break this single disclosure down into two disclosures constitutes an
unreasonable multiplication of charges:
a. First, this motion serves as PFC Manning’s objection to the unreasonable multiplication of
charges, so this factor must be resolved in his favor. See Paxton, 64 M.J. at 491.
b. Second, Specifications 10 and 11 are directed at the same conduct: a single disclosure of
certain classified records and a video. The specifications are not directed at distinctly separate
conduct. See Quiroz, 55 M.J. at 338. Like the Government’s impermissible breakdown of one
larceny into two separate larcenies in Gilchrist, see 61 M.J. at 788-89, the Government here has
impermissibly broken down a single disclosure into two separate disclosures. For the reasons
stated in Gilchrist, this constitutes an unreasonable multiplication of charges. See id.; see also
Burris, 21 M.J. at 82; cf. Johnson, 39 M.J. at 711.
c. Third, breaking down a single disclosure into two specifications, each alleging separate
disclosures, misrepresents and exaggerates PFC Manning’s criminality. See Quiroz, 55 M.J. at
338. Instead of being charged for the one disclosure, PFC Manning is being charged with two
disclosures, even though the records referenced in Specification 10 and the video file referenced
in Specification 11 were disclosed at the same time.
d. Fourth, this overcharging unreasonably increases PFC Manning’s punitive exposure. See
Quiroz, 55 M.J. at 338-39. Instead of facing a maximum ten year sentence for his alleged
Section 793(e) violation (the single disclosure), PFC Manning faces two specifications, each
containing a ten year maximum punishment. See 18 U.S.C. § 793(e) (containing maximum
punishment of imprisonment for ten years). Doubling an accused’s punitive exposure in this
manner, as explained by the Navy-Marine Court of Criminal Appeals, constitutes an
unreasonable multiplication of charges. See Quiroz, 57 M.J. at 586.
e. Finally, the Government’s decision to multiply a single disclosure into two specifications
itself demonstrates prosecutorial overreaching and abuse. Both the purpose and effect of this
artificial splitting of one offense into two is to unnecessarily pile on the charges against PFC
Manning to exaggerate his criminality and increase his punitive exposure. The principle of
unreasonable multiplication of charges is primarily aimed at preventing such a piling on of
charges and specifications. See Quiroz, 55 M.J. at 337.
28. For these reasons, this Court should determine that Specifications 10 and 11 of Charge II
constitute an unreasonable multiplication of charges and should accordingly consolidate these
specifications into one specification.
2

PFC Manning’s Primary SIPRNET Computer Forensic Report, Bates # 00211037-110, at 51-52; PFC Manning’s
Personal Computer Forensic Report, Bates # 00124283-362, at 49, 54-58, 65-68.

13

21141

CONCLUSION
29. For the reasons articulated above, this Court should determine the following:
a. that Specifications 4 and 5 of Charge II constitute an unreasonable multiplication of
charges and accordingly dismiss Specification 4;
b. that Specifications 6 and 7 of Charge II constitute an unreasonable multiplication of
charges and accordingly dismiss Specification 6;
c. that Specifications 4, 5, 6, and 7 constitute an unreasonable multiplication of charges and,
in addition to the dismissals specified in a and b, consolidate Specifications 5 and 7 into one
specification;
d. that Specifications 8 and 9 of Charge II constitute an unreasonable multiplication of
charges and accordingly dismiss Specification 8;
e. that Specifications 12 and 13 of Charge II constitute an unreasonable multiplication of
charges and accordingly dismiss Specification 12; and
f. that Specifications 10 and 11 of Charge II constitute an unreasonable multiplication of
charges and accordingly consolidate those specifications into one specification.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

14

21142

Appellate Exhibit 57
Attachments C and D
classified
"SECRET"
ordered sealed for Reason 2
Military Judge's Seal Order
dated 26 April 2012
stored in the classified
supplement to the original
Record of Trial

21143

Appellate Exhibit 57
AttachmentsCandT^
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated26April2012
stored in the classified
supplement to the original
Record ofTrial

21144

Appellate Exhibit 57
AttachmentE
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated26April2012
stored in the classified
supplement to the original
Record ofTrial



21145

OFFICIAL USE ONLY

27 March 2012
MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

l. I hereby certify that I have reviewed the following Defense motions for the presence of
classi?ed infonnation:

a) Defense Motion to Dismiss the Speci?cation of Charge 1 for Failure to State an Offense;
b) Defense Motion to Dismiss Speci?cation 1 of Charge II for Failure to State an Offense;

and
c) Defense Motion to Dismiss Based Upon Unreasonable Multiplication of Charges

I do not believe that any of these motions contain classi?ed information or information that a
reasonable person could believe to be classi?ed.

2. The Unreasonable Multiplication of Charges motion does cite to classi?ed attachments.
However, these attachments will be provided separately from the motion.

3. The point of contact for this memorandum is die undersigned at





Division
INSCOM G2

OFFICIAL USE ONLY

21146

OFFICIAL USE ONLY

28 March 2012
MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motion

1. I hereby certify that I have reviewed the following Defense motion for the presence of
classi?ed information:

a) Defense Motion to Dismiss [793 v3]

I do not believe that this motion contains classi?ed information or infonnation that a reasonable
person could believe to be classi?ed.

2. The point of contact for this memorandum is the undersigned at

-R 7/

3'
CASSIUS HALL /f
IS Division

INSCOM G2

OFFICIAL USE ONLY

21147

UNITED STATES OF AMERICA
v.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

GOVERNMENT RESPONSE
TO DEFENSE MOTION TO DISMISS
BASED UPON UNREASONABLE
MULTIPLICATION OF CHARGES

12 April 2012

RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny the defense motion to dismiss and/or consolidate
specifications based upon the allegation they constitute an unreasonable multiplication of
charges. In the alternative, the United States requests the Court defer ruling on this motion until
after the presentation of evidence or after ruling on proposed defense motions to dismiss
specifications charged as violations of l 8 U.S.C. §793(e) and 18 U.S.C. §1030(a)(l ). The
United States also requests the Court make findings establishing the elements of the 18 U.S.C.
§641, 18 U.S.C. §793(e), and 18 U.S.C. §1030(a)(l ) offenses.

BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the defense has the burden of persuasion on any factual issue the
resolution of which is necessary to decide the motion. Manualfor Courts-Martial (MCM),
United States, Rule for Courts-Martial (RCM) 905(c)(2) (2008). The burden of proof is by a
preponderance of the evidence. RCM 905(c)(l ).

FACTS

The United States stipulates to the facts as set forth in the defense motion, except for the
following statement: "The case has been referred to a general court-martial by the convening
authority with a special instruction that the case is not a capital referral." The above-captioned
case was referred to a general court-martial without special instructions.

WITNESSES/EVIDENCE

The United States requests this Court consider the following enclosures:
1. Enclosure 1 to Appellate Exhibit XV, (pp. 25-27 of the Continuation Sheet to DD
Form 457)
2. Charge Sheet
3. SD Card Forensic Report

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21148

ELEMENTS

The United States requests this Court adopt the following elements for the specifications
charging misconduct in violation of 18 U.S.C. §641, 18 U.S.C. §793(e), 18 U.S.C. §1030(a)(1):
1 8 U.S.C. §641
(1) That the accused did [steal] [purloin] [knowingly convert] a [record] [thing of value];
(2) That the [record] [thing of value] belonged to the United States government;
(3) That the [record] [thing of value] was of a value of more than $1,000;
(4) That the taking by the accused was with the intent to deprive the United States
government of the use or benefit of the property;
(5) That, at the time, 18 U.S.C. §641 was in existence;
(6) That, under the circumstances, the conduct of the accused was to the prejudice of good
order and discipline in the armed forces and was of a nature to bring discredit upon the
armed forces.
18 U.S.C. §793(e)
(1) That the accused had possession of information relating to the national defense;
(2) That the possession was unauthorized;
(3) That the accused had reason to believe that such information could be used to [the injury
of the United States] [the advantage of any foreign nation];
(4) That the accused willfully communicated, delivered, transmitted, or caused to be
communicated, delivered, or transmitted, the said information, to a person not entitled to
receive it;
(5) That, at the time, 18 U.S.C. §793(e) was in existence;
(6) That, under the circumstances, the conduct of the accused was to the prejudice of good
order and discipline in the armed forces and was of a nature to bring discredit upon the
armed forces.
18 U.S.C. §1030(a)(l)
(1) That the accused knowingly exceeded authorized access on a computer;

2

21149

(2) That the accused 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] [foreign relations];
(3) That the accused willfully communicated, delivered, transmitted, or caused to be
communicated, delivered, or transmitted, the said information, to a person not entitled to
receive it;
(4) That the accused had reason to believe that such information could be used to [the injury
of the United States] [the advantage of any foreign nation];
(5) That, at the time, 18 U.S.C. §1030(a)(l ) was in existence;
(6) That, under the circumstances, the conduct of the accused was to the prejudice of good
order and discipline in the armed forces and was of a nature to bring discredit upon the
armed forces.

LEGAL AUTHORITY AND ARGUMENT

RCM 307(c)(4) states that "[w]hat is substantially one transaction should not be made the
basis for an unreasonable multiplication of charges against one person." The Court of Appeals
for the Armed Forces has endorsed a four-part test for a trial court to determine whether the
Government has unreasonably multiplied charges:
(1) Is each charge and specification aimed at distinctly separate criminal acts?
(2) Does the number of charges and specifications misrepresent or exaggerate the accused's
criminality?
(3) Does the number of charges and specifications unreasonably increase the accused's
punitive exposure?
(4) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the
charges?
United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (citing United States v. Quiroz, 55 M.J.
334, 338); United States v. Pauling, 60 M.J. 91 (C.A.A.F. 2004). In considering whether there is
an unreasonable multiplication of charges, courts must balance the factors, ''with no single factor
necessarily governing the result." Pauling, 60 M.J. at 95. Ultimately, the doctrine is rooted in
the traditional legal standard of "reasonableness" and is designed to address prosecutorial
overreaching or abuse. See Quiroz, 55 M.J. at 338.
The defense argues that several specifications in this case violate the prohibition against
unreasonable multiplication of charges. See Def Mot. at 4. The United States disagrees.
Analysis of the four factors articulated by the Quiroz court demonstrates that the specifications at
3

21150

issue in this case do not constitute an unreasonable multiplication of charges for the reasons set
forth below.
I.

THE 18 U.S.C. §641 AND 18 U.S.C. §793(e) SPECIFICATIONS, TAKEN
TOGETHER, DO NOT CONSTITUTE SUBSTANTIALLY ONE TRANSACTION.
A The specifications are aimed at distinctly separate criminal acts.

The defense argues that each of the paired specifications (4 and 5; 6 and 7; 8 and 9) split
one transaction into two specifications. See Def Mot. at 5. Although the paired specifications
relate to the same type of information- for example, Specifications 4 and 5 allege misconduct
related to the "Combined Information Data Network Exchange Iraq database"- the paired
specifications are aimed at distinctly separate criminal acts, as illustrated by comparing the
elements of the offenses. See Pauling, 60 M.J. at 95 (referring to the court's multiplicity analysis
in deciding that the specifications a� issue were aimed at distinctly separate criminal acts). In
order to prove the accused violated 18 U.S.C. §641-Specifications 4, 6, and 8 -the United
States must establish that the accused stole, purloined, or knowingly converted (hereinafter
"stole" or ''theft" in general context) United States Government property. See 18 U.S.C. §641 .
In order to prove the accused violated 18 U.S.C. §793(e)- Specifications 5, 7, and 9-the United
States must establish that the accused communicated, delivered, or transmitted national defense
information to a person not entitled to receive it. See 18 U.S.C. §793(e). In short, the 18 U.S.C.
§641 offenses are aimed at the theft of United States Government-owned databases, while the
gravamen of the 18 U.S.C. §793(e) offenses is that the accused transmitted national defense
information to unauthorized persons. Each specification alleging a violation of 18 U.S.C. §641
is directed at misconduct independent of its paired specification alleging a violation of 1 8 U.S.C.
§793(e). The accused could have committed a theft of government property without a
corresponding unauthorized transmission, and vice versa. As such, the paired specifications are
aimed at distinctly separate criminal acts.
The defense also argues the paired specifications cannot logically be separated because
the element of ''unauthorized possession" under 18 U.S.C. §793(e) could not be met without first
stealing or knowingly converting the database charged. See Def Mot, at 6. This type of
argument has been consistently rejected by appellate courts considering unreasonable
multiplication of charges in the larceny and false claims context. In United States v. Chatman,
2003 WL 25945959 (A Ct. Crim. App. June 13, 2003) (unpublished), the Army Court of
Criminal Appeals rejected the appellant's claim that the specifications at issue were
unreasonably multiplied because the proceeds of the false claims, supported in part by false
receipts, were the subject of the larceny offense. Chatman, 2003 WL 25945959. The Chatman
court held that "the Article 132, UCMJ, offenses have nothing to do with the gravamen of the
larceny offense." Id.; see also United States v. Brumfield, 2005 WL 2704969 (N-M. Ct. Crim.
App. Oct. 12, 2005) (unpublished) (rejecting claim of unreasonable multiplication of charges and
stating that the "larceny and fraud offenses were aimed at distinctly separate criminal acts-the
fraud offenses were complete as soon as the false claims were sent to DFAS, while the larceny
was not complete until the money was actually received"). Like the false claims in Chatman and
Brumfield, the records stolen under 18 U.S.C. §641 exist separate and apart from the misconduct
relating to transmission of those records to unauthorized persons under 18 U.S.C. §793(e).
4

21151

Because each pair of specifications constitutes a distinctly separate criminal act from its
counterpart, the first factor under Quiroz must be resolved in favor of the United States.
B. The number of charges and specifications do not misrepresent or exaggerate the
accused's criminality.
Analysis of the second factor also favors the United States. Between Specifications 4, 6,
8, and 12 of Charge II, the accused is charged with the theft of more than 700,000 records from
various government databases. See Charge Sheet. The defense argues that the number of
specifications misrepresents and exaggerates the accused's criminality. In fact, the specifications
accurately represent the crimes the accused committed. As the court stated in United States v.
Foster, 40 M.J. 140, 144 (C.M.A. 1994), "there is prosecutorial discretion to charge the accused
for the offense(s) which most accurately describe the misconduct and most appropriately punish
the transgression(s)." Charging the accused with the transmission of some small amount of
national defense information would ignore the conduct that makes this case so unique in its
criminality. Specifications 4, 6, and 8 capture the theft of an unprecedented amount of
government information arising from various sources, regardless of whether the information was
transmitted to another.
C. The number of charges and specifications do not unreasonably increase the accused's
punitive exposure.
Additionally, Specifications 4, 6, and 8 do not unreasonably increase the accused's
punitive exposure. The specifications are aimed at distinct misconduct and the punitive exposure
is commensurate with the nature of the offenses. Further, the accused is charged with Giving
Intelligence to the Enemy, a violation of Article 104. See Charge I and its Specification.
Because this case was not referred capital, the Article 104 charge carries a maximum penalty of
confinement for life without eligibility for parole. Even assuming, arguendo, that the Article
104 specification is dismissed, the remedy requested by the defense-dismissal of Specifications
4, 6, and 8- would reduce the accused's punitive exposure from a maximum of 1 70 years
confinement to a maximum of 140 years confinement. The third factor must also be resolved in
favor of the United States because the accused's punitive exposure has not been unreasonably
increased. The accused was charged with the very specific offenses he committed.
D. There is no evidence of prosecutorial overreaching or abuse in the drafting of charges.
Finally, there is no evidence, and the defense has pointed to nothing in this regard, of
prosecutorial overreaching or abuse in the drafting of these specific specifications. The defense
relies on Charge II itself as an example of prosecutorial overreaching, but as demonstrated
above, Specifications 4, 6, and 8 are aimed at distinctly separate criminal acts from their
counterparts in Specifications 5, 7, and 9. The specifications as a whole are designed to account
for the egregious conduct of the accused while deployed in a combat zone. The defense believes
the use of 18 U.S.C. §641 in the area of "information relating to the national defense" pushes the
statute to the edge of its permissible application. See Def Mot. at 7. This claim was rejected by
the Fourth Circuit in United States v. Fowler, 932 F.2d 306 (4th Cir. 1991).

5

21152

In Fowler, the accused was a Department of Defense civilian who retired and worked for
the Boeing Aerospace Company ("Boeing"). Using his security clearance, he obtained classified
documents from the Department of Defense and the National Security Council and delivered
them to Boeing. Charged under 18 U.S.C. §641 with both conveying records and converting
information to his own use, Fowler unsuccessfully moved to dismiss on the ground that 18
U.S.C. §641 does not punish the acquisition of classified information. See Fowler, 932 F.2d at
309. He urged the court to adopt the separate view expressed by Judge Winter in United States
v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980). !d. As the Fowler court noted, Judge
Winter, without concurrence of the other members of the court, wrote that Congress did not
intend for 18 U.S.C. §641 to apply to the theft of government information. !d. The Fourth
Circuit disagreed, citing United States v. Morison, 844 F.2d 1057, 1077 (4th Cir. 1988) (finding
no error in the conviction under 18 U.S. C. §641 for the conversion of secret Navy documents
and photographs); United States v. Carpenter, 484 U.S. 19, 25 (1987) (holding that intangible
nature of newspaper's confidential business information did not make it any less "property''
protected by mail and wire fraud statutes); United States v. Jeter, 775 F.2d 670, 680-82 (6th Cir.
1985); United States v. Girard, 601 F.2d 69, 70-71 (2nd Cir. 1979). The court concluded that
"information is a species of property and a thing of value," and that "conversion and conveyance
of governmental information can violate section 641." Fowler, 932 F.2d at 311. In short, the
prosecution's use of 18 U.S.C. §641 in this case is a valid application of the statute and not
evidence of prosecutorial overreaching or abuse as the defense claims.
II.

SPECIFICATIONS 12 AND 13 OF CHARGE II, TAKEN TOGETHER, DO NOT
CONSTITUTE SUBSTANTIALLY ONE TRANSACTION.
A. The specifications are aimed at distinctly separate criminal acts.

Addressing the four Quiroz factors at issue, Specifications 12 and 13 of Charge II do not
constitute an unreasonable multiplication of charges. Like the paired 18 U.S.C. §641 and
§ 793(e) offenses, Specifications 12 and 13 relate to information owned by the same
organization-the Department of State. However, the specifications are aimed at distinctly
separate criminal acts-as illustrated by comparing the elements of the offenses. In order to
prove the accused violated 18 U.S.C. §641, the United States must establish that the accused
stole or knowingly converted United States Government property. See 18 U.S.C. §641. In order
to prove the accused violated 18 U.S.C. §1030(a)(l ), the United States must establish that the
accused willfully communicated, delivered, or transmitted to unauthorized persons "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." See 18 U.S.C. §1030(a)(1) . Again, the 18 U.S.C. §641 offense is aimed at
the theft of particular United States Government-owned database, while an 18 U.S.C.
§1030(a)(l ) offense cannot be completed without the transmissio_n of specific classified
information to unauthorized persons. The first Quiroz factor must be resolved in favor of the
United States. Specifications 12 and 13 are directed at distinctly separate criminal acts and stand
completely on their own.
B. The number of charges and specifications do not misrepresent or exaggerate the
accused's criminality.
6

21153

Analysis of the third Quiroz factor also favors the United States. The defense argues that
including Specification 12 misrepresents and exaggerates the accused's criminality, when in fact
Specification 12 accurately captures the varied misconduct of the accused. As the court stated in
Foster, "[T]here is prosecutorial discretion to charge the accused for the offense(s) which most
accurately describe the misconduct and most appropriately punish the transgression(s)." Foster,
40 M.J. at 144. Charging the accused with exceeding authorized access on a computer and
transmitting some small amount of classified information would ignore the conduct that makes
this case so unique in its criminality. Specification 12 captures the theft or knowing conversion
of an entire database worth of government information. It does not misrepresent or exaggerate
the accused's misconduct, but attempts to account for it.
C. The number of charges and specifications do not unreasonably increase the accused's
punitive exposure.
Additionally, the specifications at issue do not unreasonably increase the accused's
punitive exposure. The specifications are aimed at distinct misconduct and the punitive exposure
is commensurate with the nature of the offenses. Further, the accused is charged with Giving
Intelligence to the Enemy, a violation of Article 104. See Charge I and its Specification.
Because this case was not referred capital, the Article 104 charge carries a maximum penalty of
confinement for life without eligibility for parole. Even assuming, arguendo, that the Article
104 specification is dismissed, the remedy requested by the defense- dismissal of Specification
12 -would only reduce the accused's punitive exposure from a maximum of 1 70 years
confinement to a maximum of 160 years confinement. The fourth factor must also be resolved in
favor of the United States because the accused's punitive exposure has not been unreasonably
increased by including Specification 12. Specification 12 does increase the accused's punitive
exposure, but only as a reflection of the accused's misconduct in this case.
D. There is no evidence of prosecutorial overreaching or abuse in the drafting of charges.
Finally, there is no evidence, and the defense has pointed to nothing in this regard, of
prosecutorial overreaching or abuse in the drafting of these specific specifications. The defense
relies on "the way in which Specifications 12 and 13 have been drafted." Def Mot. at 9. As
discussed above with respect to the other Quiroz factors, the 18 U.S.C. §641 offense and the 18
U.S.C. §1030(a)(1) offense are aimed at distinctly separate criminal acts, occurring at different
times, and designed to account for the egregious conduct of the accused while deployed in a
combat zone. Additionally, the defense further argues there is prosecutorial overreaching or
abuse in this case because 18 U.S.C. §1030(a)(l ) was enacted to "rectify the deficiencies of
using 18 U.S.C. §641 to combat computer misuse." Def Mot. at 10. The article relied upon by
the defense does not say this, nor does the defense cite any legislative history to that effect.
Professor Kerr's article is concerned with the deficiencies in using 18 U.S.C. §641 for computer
crimes when it is difficult to define the res. Orin Kerr, The Limits of Computer Conversion:
United States v. Collins, 9 Harvard Journal of Law & Technology 205, 211 (1996). In this case,
the res is very clear-the wholesale theft of government information. Ironically, Professor Kerr
discusses the Collins case to suggest 18 U.S.C. §641 is ill-suited to address computer conversion
or misappropriation of intangible property, although the facts would pose similar problems for a
7

21154

prosecution under 18 U.S.C. §1030(a)(1). The defendant in Collins was using his government
computer to produce a newsletter for personal reasons, not obtaining classified information or
obtaining other information from any department or agency of the United States. See 18 U.S.C.
§1030(a)(1) and (a)(2).

III.

SPECIFICATIONS 4, 5, 6, AND 7 OF CHARGE II ARE DIRECTED AT
CONDUCT THAT OCCURRED ON SEPARATE DAYS AND DO NOT
CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES.

The defense requests this Court dismiss and/or consolidate Specifications 4, 5, 6, and 7 of
Charge II, leaving only one specification alleging a violation of 18 U.S.C. §793(e), based on the
assertion that the specifications split the same transaction into multiple component parts. As
discussed at length in Section I above, the conduct alleged by Specifications 4, 5, 6, and 7 of
Charge II cannot be categorized as substantially one transaction. See supra Section I.
The defense argues that all four of the specifications are directed at conduct that occurred
on the same day. Def Mot. at 11. The evidence and a plain reading of the specifications
contradict this assertion. See Charge Sheet. According to the forensic examination of the
accused's Secure Digital (SD) card1, the theft of the Combined Information Data Network
Exchange Iraq database and the Combined Information Data Network Exchange Afghanistan
database likely occurred on separate days, as evidenced by the "last written2" dates of the
"afg_events.csv" file (8 January 2010) and the "irq__events.csv" file (5 January 201 0). See
Enclosure 3 at 9-10. The "afg_events.csv" file contains the records that are the subject of
Specification 6. The "irq__events.csv" file contains the records that are the subject of
Specification 4. Similarly, the forensic examination of the SD card indicates the transmission of
the databases likely occurred sometime after 26 January 2010, because the accused was at his
aunt's residence on leave and the compilation file (''yada.tar.bz2.nc"), containing the
"afg_events.csv" and "irq__events.csv" sub-files, was created on 30 January 2010. See Enclosure
3 at 6-10. Thus, aside from the date ranges specified in the specifications themselves, the
evidence clearly indicates that the misconduct charged in Specifications 4, 5, 6, and 7 of Charge
II occurred on separate days. Each specification is directed at conduct independent of the
conduct in the other specifications. The specifications do not constitute substantially one
transaction as the defense has alleged.

1

An SD card is a memory card developed for use in portable devices. They have become a widespread means of

storing several gigabytes of data in a small device.
2

The "last written" date field in Encase indicates the date the digital file was last modified on a media device or

hard drive. EnCase is a computer forensics product produced by Guidance Software used to analyze digital media
by law enforcement agencies.

8

21155

IV.

SPECIFICATIONS 10 AND 11 OF CHARGE II ARE DIRECTED AT CONDUCT
THAT OCCURRED ON SEPARATE DAYS AND DO NOT CONSTITUTE AN
UNREASONABLE MULTIPLICATION OF CHARGES.

The defense asserts that Specifications 10 and 11 of Charge II are directed at a single
disclosure of classified records and a video. De£ Mot. at 13. However, the defense
acknowledges the difference between the two specifications-that as alleged, the disclosure of
the classified records and the video occurred months apart. Furthermore, the "reality" the
defense speaks of- that the classified records and the video were disclosed at the same time on
the same day- is contradicted by the findings of the Article 32 investigating officer, who cited
the Government's evidence that (1) an individual named Jason Katz was in possession of the
video as early as 15 December 2009, and (2) WikiLeaks was in possession of the video as early
as 8 January 2010. See Enclosure 1. Considering the time periods of the specifications
themselves and the evidence presented at the Article 32, Specifications 10 and 11 of Charge II
are different transactions aimed at distinctly separate criminal acts.
Additionally, the inclusion of Specification 11 of Charge II is not unreasonable and does
not misrepresent or exaggerate the accused's criminality; rather, it accurately represents the
misconduct of the accused by charging him with transmitting national defense information to the
WikiLeaks organization as early as 1 November 2009. See Charge Sheet. Finally, the question
of when the video was transmitted should be left to the trier of fact. If, as the defense asserts, the
classified records in Specification 10 were transmitted to an unauthorized person on the same
day as the video in Specification 11, the panel or military judge can find the accused not guilty of
Specification 11.
CONCLUSION

For the reasons stated above, the United States requests the Court DENY the defense
motion to dismiss and/or consolidate specifications as an unreasonable multiplication of charges.
If the Court is inclined to consider any specifications to be unreasonably multiplied, the United
States requests the Court defer ruling on a remedy until after the presentation of evidence or after
ruling on defense motions to dismiss the specifications charged as violations of 18 U.S.C.
§793(e) and 18 U.S.C. §1030(a)(l ).


.lc
� �
T, JA
Trial Counsel

9

21156

I certify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 12 April 2012.

\l�

.Z,T,JA
M

Trial Counsel

10

21157

Appellate Exhibit
Enclosurel
has been entered into the
record as
Appellate Exhibitl^
Enclosurel

"l

Appellate Exhibit 58
Enclosure 2
is the charge sheet

21159

Appellate Exhibit 58
Enclosure 3
13 pages
classified
"SECRET"
ordered sealed for Reason 2
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

21160

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)
)

DEFENSE MOTION TO
DISMISS SPECIFICATION 1
OF CHARGE II FOR FAILURE
TO STATE AN OFFENSE

DATED: 29 March 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 907(b)(1)(B), requests this Court to dismiss
Specification 1 of Charge II for failure to state a cognizable offense under Article 134
because Specification 1 of Charge II, as currently drafted, is preempted by Article 104 or,
in the alternative, because Specification 1 of Charge II must be charged as a violation of
Article 92 since there is a lawful order or regulation prohibiting the unauthorized
possession and dissemination of classified information.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. The Defense, as the moving party, bears the burden of this motion by a preponderance
of the evidence pursuant to R.C.M. 905(c).
FACTS
3. PFC Manning is charged with five specifications of violating a lawful general
regulation, one specification of aiding the enemy, one specification of conduct prejudicial
to good order and discipline and service discrediting, eight specifications of
communicating classified information, five specifications of stealing or knowingly
converting government property, and two specifications of knowingly exceeding
authorized access to a government computer, in violation of Articles 92, 104, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 904, 934 (2010). The case
has been referred to a general court martial by the convening authority with a special
instruction that the case is not a capital referral.

21161

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

4. In Specification 1 of Charge II, the Government pleads that PFC Manning
“wrongfully and wantonly caused to be published on the internet intelligence belonging
to the United States government, having knowledge that intelligence published on the
internet is accessible to the enemy . . . .” Additionally, in the Specification of Charge I,
the Government pleads that PFC Manning “between on or about 1 November 2009 and
on or about 27 May 2010, without proper authority knowingly gave intelligence to the
enemy, through indirect means.” On 14 February 2012, the Defense, pursuant to R.C.M.
906(b)(6), moved this Court to direct the Government to respond to a bill of particulars in
the subject case on the grounds that it was necessary for PFC Manning to understand the
charges against him so that he could adequately prepare his defense and not be subject to
unfair surprise at trial. The Government’s particulars in response to the Specification of
Charge I indicated that its theory of knowingly giving intelligence to the enemy was “by
transmitting certain intelligence, specified in a separate classified document, to the enemy
through the WikiLeaks website.” See Government Bill of Particulars Response. The
Government also stated that its theory of indirect means was that PFC Manning gave the
charged intelligence to “the WikiLeaks website.” Id. Additionally, the Government’s
particulars in response to Specification 1 of Charge II was that PFC Manning wrongfully
and wantonly cause intelligence to be published on the Internet “by leaking thousands of
documents gathered from the SIPRNET, including several databases, to the WikiLeaks
organization.” Id. The Defense maintains that Specification 1 of Charge II should be
dismissed because it is preempted by Article 104. In the alternative, the Defense argues
that Specification 1 of Charge II should be dismissed because it must be charged as a
violation of Article 92 – and not as a violation of Article 134 – since there is a lawful
general order or regulation covering PFC Manning’s alleged conduct that forms the
factual basis for Specification 1 of Charge II, namely, the unauthorized possession and
dissemination of classified information.
WITNESSES/EVIDENCE
5. The Defense does not request any witnesses be produced for this motion. The
Defense respectfully requests this court to consider the following evidence in support of
the Defense’s motion.
a. Charge Sheet;
b. Continuation of DD Form 457.

LEGAL AUTHORITY AND ARGUMENT
A.

Specification 1 of Charge II Should be Dismissed Because it is Preempted
by Article 104
2

21162

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

6. The Defense submits that Specification 1 of Charge II fails to state a cognizable
offense because it is preempted by Article 104. Accordingly, the specification should be
dismissed.
7. Article 104 punishes “[a]ny person who – (1) aids, or attempts to aid, the enemy with
arms, ammunition, supplies, money, or other things; or (2) without proper authority,
knowingly harbors or protects or gives intelligence to, or communicates or corresponds
with or holds any intercourse with the enemy, either directly or indirectly[.]” 10 U.S.C. §
904. Article 134, by contrast, applies to offenses “not specifically mentioned in [the
UCMJ.]” Id. § 934.
8. The Court of Military Appeals has defined the doctrine of preemption as “the legal
concept that where Congress has occupied the field of a given type of misconduct by
addressing it in one of the specific punitive articles of the code, another offense may not
be created and punished under Article 134, UCMJ, simply by deleting a vital element.”
United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979). The preemption doctrine is described
in paragraph 60(c)(5)(a) of the Manual for Courts-Martial (MCM), which provides, in
pertinent part:
The preemption doctrine prohibits application of Article 134 to conduct
covered by Articles 80 through 132. For example, larceny is covered in
Article 121, and if an element of that offense is lacking – for example,
intent – there can be no larceny or larceny-type offense, either under
Article 121 or, because of preemption, under Article 134. Article 134
cannot be used to create a new kind of larceny offense, one without the
required intent, where Congress has already set the minimum requirements
for such an offense in Article 121.
MCM, para. 60(c)(5)(a). Courts apply a two-pronged test to determine whether an
Article 134 charge is preempted by another Article in any given case. First, it must be
shown that Congress “indicate[d] through direct legislative language or express
legislative history that particular actions or facts are limited to the express language of an
enumerated article, and may not be charged under Article 134, UCMJ.” United States v.
Anderson, 68 M.J. 378, 387 (C.A.A.F. 2010); see Kick, 7 M.J. at 85; United States v.
Wright, 5 M.J. 106, 110-11 (C.M.A. 1978). Second, it must be established that the
offense charged under Article 134 is composed of a “residuum of elements” of an
enumerated offense under the UCMJ. Wright, 5 M.J. at 111; see Kick, 7 M.J. at 85. Both
prongs are satisfied by the Government’s use of Article 134 in the instant case.
9. Congress clearly intended Article 104 to occupy the field of aiding or communicating
with the enemy. Article 104 uses very broad language to accomplish this intent; the
Article punishes anyone who aids, attempts to aid, knowingly harbors, protects, gives
intelligence to, communicates with, corresponds with, or holds any intercourse with the
3

21163

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

enemy. 10 U.S.C. § 904. Not only does Article 104 prohibit each and every one of these
acts, a person can violate this Article “either directly or indirectly[.]” Id. Through this
“direct legislative language,” Anderson, 68 M.J. at 387, Congress has clearly
demonstrated its intent for Article 104 “to cover a class of offenses in a complete way.”
Kick, 7 M.J. at 85. Therefore, the first prong of the preemption inquiry is satisfied by the
all encompassing language of Article 104.
10. Additionally, the Article 134 specification that the Government has attempted to
charge in this case is simply a residuum of most of the elements required for an Article
104 prosecution. For the reasons fully articulated in the Defense’s Article 104 Motion to
Dismiss, the Government’s Article 104 charge – that PFC Manning indirectly gave
intelligence information to the enemy by publishing it on the internet with the knowledge
that it could be accessed by the enemy – fails to state a cognizable offense under Article
104 because it does not allege the requisite intent to aid the enemy. See Defense Motion
to Dismiss the Specification of Charge I for Failure to State an Offense. The Government
has simply used Article 134 in an effort to rectify its inability to allege the requisite
criminal intent under Article 104. However, the Government is not permitted to utilize
Article 134 to circumvent the intent requirement of Article 104 in this manner. As
mentioned above, the Government has alleged that PFC Manning violated Article 134 by
“wrongfully and wantonly causing to be published on the internet intelligence belonging
to the United States, thereby providing such intelligence to persons not entitled to receive
it, having knowledge that intelligence published on the internet is accessible to the
enemy.” However, this specification essentially alleges an Article 104 violation –
indirectly giving intelligence to the enemy – without alleging any corresponding mens
rea.
11. This is precisely the evil that the preemption doctrine was designed to combat. The
first case enunciating the preemption doctrine in the UCMJ context, United States v.
Norris, perfectly illustrates this point. In that case, the accused was charged with larceny
and wrongful appropriation under Article 121 and wrongful taking under Article 134.
United States v. Norris, 8 C.M.R. 36, 37-38 (C.M.A. 1953). The accused was initially
found guilty of wrongful appropriation and wrongful taking, but on appeal the board of
review held that the law officer had erred in not instructing on the effect of intoxication
on specific intent. Id. at 38. The board remedied this defect by vacating the wrongful
appropriation conviction and affirming the wrongful taking conviction under Article 134,
as the offenses charged under Article 121 required a specific intent to deprive the owner
of the property, either permanently or temporarily, and the wrongful taking charge
required only a general criminal intent. Id. The Court of Military Appeals reversed,
holding that “there is no offense known as ‘wrongful taking’ requiring no element of
specific intent, embraced by Article 134 of the Code.” Id. at 40. The Court reasoned
that:
Article 134 should generally be limited to military offenses and those
crimes not specifically delineated by the punitive articles . . . . We cannot
4

21164

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

grant to the services unlimited authority to eliminate vital elements from
common law crimes and offenses expressly defined by Congress and
permit the remaining elements to be punished as an offense under Article
134.
Id. at 39. Just as the Government was not permitted in Norris to use Article 134 to create
an Article 121-type offense when it was unable to prove the requisite intent under Article
121, so too should the Government not be permitted here to use Article 134 to create an
Article 104-type offense when it is unable to prove the requisite intent under Article 104.
See id. at 39-40; see also MCM, para. 60(c)(5)(a). As Specification 1 of Charge II is
currently drafted, this is precisely what the phrase “having knowledge that intelligence
published on the internet is accessible to the enemy” seeks to accomplish. Thus, this
specification should be dismissed, as it is preempted by Article 104.
12. The result in Anderson does not foreclose the preemption question in this case. The
accused in Anderson provided emails including “comprehensive information about the
number of soldiers in his unit, their training programs, and the precise location to which
his unit would be deploying” to a person he believed to be a “Muslim extremist,” who in
reality was a concerned American citizen attempting to thwart terrorist activities. 68 M.J.
at 381. The accused also met with undercover FBI agents whom he believed to be Al
Qaeda operatives and disclosed to them “computer diskettes containing classified
information on the vulnerabilities of various military vehicles, the vulnerabilities of his
unit as they travelled to Iraq, and other sensitive information.” Id. As a result of his
conduct, the accused was charged with, and convicted of, attempting to give intelligence
information to the enemy, attempting to communicate with the enemy, and attempting to
aid the enemy, all in violation of Articles 80 and 104, and of “wrongfully and
dishonorably providing information to military personnel whom he believed were
terrorists, which was conduct prejudicial to good order and discipline and of a nature to
bring discredit upon the armed forces,” in violation of Article 134. Id. at 380.
13. On appeal, the accused contended, inter alia, that Article 104 preempted the Article
134 offense in his case. Id. at 386. The Court of Appeals for the Armed Forces rejected
the accused’s preemption argument. Id. at 387. The Court first reasoned that “the
legislative history of Article 104, UCMJ, does not clearly indicate that Congress intended
for offenses similar to those at issue to only be punishable under Article 104, UCMJ, to
the exclusion of Article 134, UCMJ.” Id. The Court then observed that “while the two
charges in this case have parallel facts, as charged they are nonetheless directed at
distinct conduct.” Id. The Court elaborated:
The Article 104, UCMJ, charge was directed at [accused’s] attempt to aid
the enemy directly. The Article 134, UCMJ, charge was directed towards
the distribution of sensitive material to individuals not authorized to
receive it-in this case Criminal Investigation Command agents posing as
the enemy, but the reasoning could just as easily be applied to the
5

21165

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

distribution of information to individuals who are not necessarily the
enemy, such as a newspaper reporter, or for that matter the private citizen
who first encountered [accused] on the “Brave Muslim” website. Unlike
Article 104, UCMJ, the general offense as charged prohibits the
dissemination of the information regardless of the intent behind that
dissemination. If this distinction was not permissible in light of Article
104, UCMJ, Congress was free to clearly state that Article 104, UCMJ,
supersedes Article 134, UCMJ, in this context.
Id.
14. Here, unlike in Anderson, the Article 104 Specification of Charge I and the Article
134 Specification (Specification 1) of Charge II are not aimed at distinct conduct, but
rather are aimed at the exact same conduct – PFC Manning’s alleged publication of
United States intelligence information on the internet. Moreover, the Article 134
Specification in the instant case is not simply directed “towards the distribution of
sensitive material to individuals not authorized to receive it[,]” as was the Article 134
Specification in Anderson. Id. Instead, the Government in this case has broadened the
reach of Article 134 by including the phrase “having knowledge that intelligence
published on the internet is accessible to the enemy” in the Article 134 Specification. By
grafting this phrase into the Article 134 Specification, the Government has vitiated the
distinction that the Anderson Court deemed crucial to its finding of no preemption: that
the Article 104 charge was directed toward the accused’s attempt to aid the enemy
directly and the Article 134 charge was solely directed towards the dissemination of the
information, regardless of the purpose/knowledge behind that dissemination. See id. By
contrast, the Government here has directed the Article 134 charge and Article 104 charge
at identical conduct and extended the reach of Article 134 beyond where it must remain
contained: solely at the dissemination of the information to one not authorized to receive
it. Id.
15. Additionally, the Anderson Court’s statement that “the legislative history of Article
104, UCMJ, does not clearly indicate that Congress intended for offenses similar to those
at issue to only be punishable under Article 104, UCMJ, to the exclusion of Article 134,
UCMJ[,]” must be read in context. Id. (emphasis supplied). In Anderson, the Article 134
charge was directed solely at the accused’s dissemination of information to those not
authorized to receive it; it was immaterial to that charge whether he knew that the enemy
could access or utilize the information he provided. Id. Thus, it is hardly surprising that
the Anderson Court was unable to find any legislative history to clearly indicate that
Congress intended to preempt Article 134 prosecutions for unauthorized dissemination of
classified information. In the instant case, however, PFC Manning’s alleged knowledge
of the fact that the information could be accessed by the enemy appears to be central to
the Article 134 Specification. The all-encompassing language of Article 104 clearly
evidences Congress’s intent to limit the prosecution of all efforts to aid or communicate

6

21166

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

with the enemy to Article 104, and to preclude any Article 134 prosecutions of such
conduct.
16. For these reasons, Specification 1 of Charge II, as currently charged, is preempted by
Article 104. Accordingly, that specification should be dismissed.
B.

Specification 1 of Charge II Should be Dismissed Because the Facts Alleged
Must be Charged as a Violation of Article 92 and not as a Violation of Article
134

17. In the alternative, the Defense submits that the Government fails to state an Article
134 offense against PFC Manning because it cannot lawfully charge an accused with an
Article 134 offense when the charged conduct violates a punitive lawful general order or
regulation. In such a situation, that conduct must be charged, if at all, as a violation of
Article 92. In the instant case, PFC Manning’s alleged conduct is claimed to be in
violation of a lawful general order or regulation concerning the unauthorized possession
and dissemination of classified information. Therefore, the Government cannot charge
PFC Manning with an Article 134 violation and Specification 1 of Charge II must
accordingly be dismissed.
18. Article 134 provides in full as follows:
Though not specifically mentioned in this chapter, all disorders and
neglects to the prejudice of good order and discipline in the armed forces,
all conduct of a nature to bring discredit upon the armed forces, and
crimes and offenses not capital, of which persons subject to this chapter
may be guilty, shall be taken cognizance of by a general, special, or
summary court-martial, according to the nature and degree of the offense,
and shall be punished at the discretion of that court.
10 U.S.C. § 934 (emphasis supplied). Article 92 provides for punishment of any person
subject to the UCMJ who “(1) violates or fails to obey any lawful general order or
regulation; (2) having knowledge of any other lawful order issued by a member of the
armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the
performance of his duties[.]” Id. § 892.
19. The Air Force Court of Criminal Appeals in United States v. Borunda recently
clarified the interplay between Articles 92 and 134 where the invocation of Article 134 is
premised on the same conduct that would support an Article 92 charge. See 67 M.J. 607
(2009). Citing United States v. Caballero, 49 C.M.R. 594 (C.M.A. 1975), the Borunda
court held that “when a lawful general order or regulation proscribing [certain conduct]
exists, an order or regulation which by definition is punitive, the [proscribed conduct], if
charged, will only survive legal scrutiny as a violation of Article 92(1), UCMJ, and not as
7

21167

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

a violation of Article 134, UCMJ.” Borunda, 67 M.J. at 609 (footnote omitted)
(emphasis supplied). The court upheld the use of Article 134 to prosecute an accused for
possession of drug paraphernalia where no lawful general order or regulation proscribed
such possession, concluding that “in the absence of a lawful general order or regulation,
charging officials are at liberty to charge the possession of drug paraphernalia as a
violation of Article 92(3), UCMJ, or Article 134, UCMJ.” Id. (footnotes omitted).
20. The Borunda court’s holding is supported by both case law and commentary. In
Caballero, for instance, the Court of Military Appeals addressed the issue of “whether
the wrongful and unlawful possession of narcotic paraphernalia on-post, absent any
regulation or general order prohibiting that conduct so as to render any violation thereof
an offense under Article 92, UCMJ, can be properly charged or alleged as an offense
under clause 1 of Article 134.” 49 C.M.R. at 595 (emphasis supplied). The Court in
Caballero reversed the accused’s conviction under Article 134 for wrongful possession
of narcotic paraphernalia, finding that the specification failed to allege an offense. Id. at
597. Specifically, the Court declined the Government’s request to construe Article 134
broadly enough to cover the charged conduct:
Since this Court has long recognized and held that the possession of
narcotic paraphernalia might otherwise be properly prosecuted as an
Article 92 violation, where such an order or regulation exists, we find no
demonstrated need to expand the reach of Article 134, beyond that which
already exists, to cover an offense such as this.
Id. Thus, Caballero supports Borunda’s holding that a court must not sustain an Article
134 prosecution under the first or second clause where the conduct underlying that
prosecution also violates a lawful general order or regulation.
21. Additionally, the MCM provides that “[i]f any conduct [falling within Article 134’s
reach] is specifically made punishable by another article of the code, it must be charged
as a violation of that article.” MCM, para. 60(c)(1). More to the point, the MCM further
explains that “[m]any customs of the service are now set forth in regulations of the
various armed forces. Violations of these customs should be charged under Article 92 as
violations of the regulations in which they appear if the regulation is punitive.” Id. para.
60(c)(2)(b) (emphasis supplied); see also United States v. Henderson, 32 M.J. 941, 948
(N-M.C.M.R. 1991) (Lawrence, J., concurring) (“[T]he existence of an established
custom of the military service may satisfy the notice requirement. The existence of the
custom must be proved. If the custom is set forth in a punitive regulation or order,
violation of it should be charged under Article 92.”).
22. Relying on an earlier version of the MCM containing similar language, Judge
Ferguson of the Court of Military Appeals observed that:

8

21168

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

“When an offense is specifically defined in a particular punitive article, it
ordinarily should be charged under that article rather than under Article
134, the general article.”
Article 92 is one of the punitive articles of the Code . . . and regulations
promulgated thereunder must be considered, when charging a violation of
the Code, before recourse may be had to the use of Article 134.
United States v. Walter, 43 C.M.R. 207, 212 (C.M.A. 1971) (Ferguson, J., dissenting)
(quoting MCM, para. 27 (1969 ed.)). Judge Ferguson cautioned that “Article 134 was not
intended by Congress to apply in areas otherwise the subject of specific attention in
Articles of the Uniform Code.” Id. (quoting United States v. Hallett, 15 C.M.R. 378, 382
(C.M.A. 1954)).
23. Along similar lines, one commentator has remarked that “Article 92 makes the
General Articles [i.e. Articles 133 and 134] unnecessary[.]” Note, Taps for the Real
Catch-22, 81 Yale L. J. 1518, 1541 (1972); see also Parker v. Levy, 417 U.S. 733, 788
n.2 (1974) (Stewart, J., dissenting) (citing 81 Yale L. J. 1518 in support of the proposition
that Article 92, and not Article 134, should be utilized for failure to obey lawful orders);
cf. United States v. Harwood, 46 M.J. 26, 29 (C.M.A. 1997) (Cox, C.J., concurring)
(“Article 134 has always been understood as a residual provision rather than a redundant
one.”).1
24. Here, the facts alleged by the Government bring this case squarely within the rule
announced in Borunda. PFC Manning is alleged to have wrongfully and wantonly
caused to be published on the internet United States intelligence information with the
knowledge that such information is accessible to the enemy. At the time of PFC
Manning’s alleged unlawful actions, the United States Army had a punitive lawful
general order or regulation proscribing the unauthorized possession and distribution of
classified information. See Army Regulation 380-5, Paragraph 1-21a (stating that
Department of Army personnel will be subject to sanctions if they knowingly, willfully,
or negligently disclose classified or sensitive information to unauthorized persons). If the
Government’s evidence is to be believed, PFC Manning’s actions constitute a violation of
that lawful general order or regulation. See MCM, para. 16(b)(1) (stating the elements of
a successful Article 92(1) prosecution: “(a) That there was in effect a certain lawful
1

The resolution of this issue is not controlled by United States v. McGuinness, wherein the Court of
Military Appeals determined that “prosecution of violations of 18 U.S.C. § 793(e) under Clause 3 of Article
134 is not preempted by Article 92.” 35 M.J. 149, 152 (C.M.A. 1992). The rule announced in Borunda in
no way relies on the preemption doctrine. See Borunda, 67 M.J. at 609. Additionally, while the conduct
supporting the Article 134 charge (brought under clause 3) in McGuinness was the violation of a federal
statute, see 35 M.J. at 152, the alleged conduct supporting the Article 134 specification and charge (brought
under clause 1 or 2) in the instant case is PFC Manning’s alleged wrongful and wanton publication on the
internet of United States intelligence information, with the knowledge that information placed on the
internet is accessible to the enemy. Thus, McGuinness is inapposite to the question of the propriety of the
Government’s Article 134 specification and charge in this case.

9

21169

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

general order or regulation; (b) That the accused had a duty to obey it; and (c) That the
accused violated or failed to obey the order or regulation.”). Therefore, under the rule
outlined in Borunda, the Government must charge this conduct, if at all, as a violation of
Article 92; it cannot charge the conduct as a violation of Article 134. See 67 M.J. at 609.
25. Thus, because the Government cannot lawfully charge PFC Manning with a violation
of Article 134 for conduct that is chargeable only under Article 92, the Government does
not state a cognizable Article 134 offense against PFC Manning. Accordingly,
Specification 1 of Charge II should be dismissed.
CONCLUSION
26. Wherefore, in light of the foregoing, the Defense requests this Court dismiss
Specification 1 of Charge II for failure to state an offense because Specification 1 of
Charge II, as currently drafted, is preempted by Article 104 or, in the alternative, because
Specification 1 of Charge II must be charged as a violation of Article 92 since there is a
lawful order or regulation prohibiting the unauthorized possession and dissemination of
classified information.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

10

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OFFICIAL use ONLY

28 March 20l2
MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motion

1. I hereby certify that have reviewed the following Defense motion for the presence of
classi?ed information:
a) Defense Motion to Dismiss [793 v3]

I do not believe that this motion contains classi?ed information or information that a reasonable
person could believe to be classi?ed.

2. The point of contact for this memorandum is the undersigned at

-

CASSIU HALL /7

?/13 Division
INSCOM G2

OFFICIAL USE ONLY



21171

OFFICIAL USE ONLY

27 March 2012
MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

I . I hereby certify that I have reviewed the following Defense motions for the presence of
classi?ed information:

a) Defense Motion to Dismiss the Speci?cation of Charge I for Failure to State an Offense;
b) Defense Motion to Dismiss Speci?cation I of Charge II for Failure to State an Offense;

and
c) Defense Motion to Dismiss Based Upon Unreasonable Multiplication of Charges

I do not believe that any of these motions contain classi?ed infonnation or information that a
reasonable person could believe to be classi?ed.

2. The Unreasonable Multiplication of Charges motion does cite to classi?ed attachments.
However. these attachments will be provided separately ?om the motion.

3. The point of contact for this memorandum is tlfe undersigned at



IS Division
INSCOM G2

OFFICIAL USE ONLY



21172



From:

To:

Cc:

subject: Defense Motions

Date: Thursday, March 29, 2012 3:43:41 PM

Attachmenbz
. I .


. .

3 .




Ma'am,

I have attached PDF and Word versions of the following motions:

a) Defense Motion to Dismiss The Speci?cation of Charge I for Failure to
State an Offense along with Attadwment

b) Defense Motion to Dismiss Sped?cation 1 of Charge II for Failure to
State an Offense; and

c) Defense Motion to Dismiss Based Upon Unreasonable Multiplication of
Charges (the Government will be sending the referenced classi?ed
attachments to the Court and Mr. Prather).

In addition to the attached motions, the Defense has attached the review of
each motion completed by its Security Expert - Mr. Cassius Hall.

v/
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, including attadwments, may
contain confidential attomey-client information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is

21173

UNITED STATES OF AMERICA
v.
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)

Prosecution Response to
Defense Motion to Dismiss Specification 1
of Charge II for Failure to
State an Offense

)

)
)

12 April 2012

RELIEF SOUGHT

The prosecution respectfully requests the Court deny the Defense Motion to Dismiss
Specification 1 of Charge II for Failure to State an Offense (the "Defense Motion") because
Specification 1 of Charge II (the "Article 134 offense") is neither preempted by Article 104,
UCMJ, nor punishable under Article 92, UCMJ. The prosecution also requests the Court make
fmdings as to the elements ofthe Article 134 offense.
BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the Defense bears the burden of persuasion and must prove any
factual issues necessary to decide this motion by a preponderance of the evidence. See Manual
for Courts-Martial (MCM), United States, Rule for Courts-Martial (RCM) 905(c) (2008).
FACTS

The prosecution stipulates to those facts set forth in paragraphs 3-4 of Defense Motion,
except for the statement that the "case has been referred to a general court martial by the
convening authority with a special instruction that the case is not a capital referral." Def Mot. at
1. The above-captioned case was referred to a general court-martial without special instructions.
The prosecution further disputes any argument contained therein.
·
The Specification of Charge I (the "Article 104 offense") reads that the accused, ''without
proper authority, knowingly [gave] intelligence to the enemy, through indirect means."
Enclosure 1.
The Article 134 offense reads that the accused ''wrongfully and wantonly cause[ d] to be
published on the internet intelligence belonging to the United States government, having
knowledge that intelligence published on the internet is accessible to the enemy, 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." Enclosure 1.
U.S. Department ofthe Army, Pam. 27-9, Military Judges' Benchbook (1 January 2010)
(Benchbook), lists the following elements for the Article 134, Uniform Code ofMilitary Justice
(UCMJ), offense relating to Specification 1 of Charge II:

21174

( 1) That (state the time and place alleged), the accused (here state the act, conduct, or
omission alleged); and
(2) That, under the circumstances, the conduct of the accused was (to the prejudicial
of good order and discipline in the armed forces) (or) (of a nature to bring discredit
upon the armed forces).
The Benchbook lists the following elements for Giving Intelligence to the Enemy under
Article 104(2):
(1) That (state the time and place alleged), the accused, without proper
authority, knowingly gave intelligence information to (a) certain
person(s), namely: (state the name or description of the enemy alleged
to have received the intelligence information);
(2) That the accused did so by (state the manner alleged);
(3) (state the name or description of the enemy alleged to have
received the intelligence information) was an enemy; and
(4) That this intelligence information was true, at least in part.

WITNESSES/EVIDENCE
The prosecution does not request any witnesses be produced for this Motion. The
prosecution requests that the Court consider the following enclosures to this Motion in its ruling.
1. Charge Sheet (already provided in record)
2. Government Response to Defense Bill ofParticulars, 8 March 2012 (Appellate
Exhibit XIV)
3. Army Regulation 380-5, Paragraph 1-21a

LEGAL AUTHORITY AND ARGUMENT
The prosecution requests that the Court deny the Defense Motion because the Article 134
offense is neither preempted by Article 104 nor punishable under Article 92.

I:

THE ARTICLE 134 OFFENSE IS NOT PREEMPTED BY ARTICLE 104.

Military courts adopt a two-part test for determining whether the preemption doctrine
applies. See United States v. Wright, 5 M.J. 106, 110-11 (C.M.A. 1978). The test is as follows:
first, "whether Congress intended to limit prosecution for wrongful conduct within a particular
area or field to offenses defined in specific articles of the Code; [and second] whether the offense
charged is composed of a residuum of elements of a specific offense and asserted to be a
violation o£..Article 134[.]" Id., at 110-11. The preemption doctrine "requires an affirmative
2

21175

answer to [both] questions." Id., at 110. In Anderson, the Court of Appeals for the Armed
Forces (CAAF) squarely answered both questions as they relate to this case in the negative. See
United States v. Anderson, 68 M.J. 378, 387 (C.A.A.F. 2010).
A. The CAAF in Anderson Concluded that Congress Did Not Intend to Limit
Prosecution ofthe Accused's Misconduct to Article 104.
The preemption doctrine does not apply, unless "Congress intended the other punitive
article to cover a class of offenses in a complete way." United States v. Kick, 7 M.J. 82, 85
(C.M.A. 1979). Military courts "require[] Congress to indicate through direct legislative
language or express legislative history that particular actions or facts are limited to the express
language of an enumerated article, and may not be charged under [another punitive article]." See
Anderson, 68 M.J. at 387. Military courts are "extremely reluctant to conclude that Congress
intended [] provisions to preempt [an] offense ... in the absence of a clear showing of a contrary
intent." Kick, 7 M.J. at 85 (emphasis added) (stating that there is no congressional intent to
preempt offense of negligent homicide from spectrum of punishable criminal homicides); see
also United States v. Erickson, 61 M.J. 230 (C.A.A.F. 2005) ("[T]he legislative history of Article
112a reflects congressional intent to not cover the class of drug-related offenses in a complete
way."); see also United States v. McGuinness, 35 M.J. 149 (C.M.A. 1992) ("[N]othing in the
legislative history of Article 92 and 134 indicat[e] that Congress intended that general orders
would preempt offenses made applicable to the military [under] Article 134."). The defense
argues that Congress clearly intended Article 104 to occupy the field of aiding or communicating
with the enemy. This argument conflicts with the CAAF ruling in Anderson. See id., at 387.
The CAAF in Anderson concluded Article 104 did not preempt an Article 134 offense for
distributing sensitive material to individuals not authorized to receive it. See id., at 386-7. 1 In
Anderson, the appellant provided comprehensive information about his unit's pending
deployment to a purported Muslim extremist through a series of email communications. The
purported "extremist," a concerned American citizen, notified the Federal Bureau of
Investigation (FBI) who opened an investigation and began communicating with the appellant.
The appellant later provided undercover FBI agents, posing as al Qaeda operatives, computer
diskettes containing classified information on the vulnerabilities of military operations. The
appellant was convicted of attempting to give intelligence to the enemy, attempting to aid the
enemy, and conduct prejudicial to good order and discipline. See id.
On appeal, the appellant argued that Article 104 preempted the Article 134 offense. The
CAAF denied this argument, concluding that ''the legislative history of Article 104 does not
clearly indicate that Congress intended for offenses similar to those at issue [i.e., the distribution
of sensitive material to individuals not authorized to receive it] to only be punishable under
Article 104 to the exclusion of Article 134." ld., at 387; see also UCMJ art. 104 (2008); see also
1

In Anderson, the appellant was charged with violating, inter alia, Article 104, by "attempt[ing] to, without proper
authority, knowingly give intelligence to the enemy, by disclosing true information to [persons] whom the
[appellant] thought were Tariq Hamdi and Mohammed, members of the al Qaida terrorist network," and Article 134,
by "wrongfully and dishonorably provid[ing] information on U.S. Army troop movements .... to [persons] whom the
[appellant] thought were Tariq Hamdi and Mohammed, members of the al Qaida terrorist network, such conduct
being prejudicial to good order and discipline in the armed forces, and of a nature to bring discredit upon the armed
forces." Anderson, 68 M.J. at 378.

3

21176

UCMJ art. 134 (2008). The CAAF noted that its "reasoning could just as easily be applied to the
distribution of information to individuals who are not necessarily the enemy, such as a
newspaper report or. . .the private citizen who first encountered appellant [online]." ld., at 387
("if this distinction was not permissible ... Congress was free to clearly state that Article 104
supersedes Article 134 in this context"). Here, the accused is charged with causing intelligence
to be published on the internet in violation of Article 134, an offense within the reasoning of the
CAAF in Anderson.
Accordingly, this Court should answer the first prong of the preemption doctrine in the
negative. The Article 134 offense is not preempted by Article 104.
B. The Article 134 Offense is Not Composed of a Residuum of Elements of a Specific
Offense and Asserted to be a Violation of Article 134, UCMJ.
Even assuming, arguendo, the Court finds that Congress intended Article 104 to preempt
the conduct underlying the Article 134 offense, the preemption doctrine does not apply because
the Article 134 offense is not composed of a residuum ofthose elements for Article 104. The
prosecution respectfully requests that the Court make findings with respect to the elements of the
Article 134 offense consistent with those enumerated in the Benchbook. The prosecution
requests that the Court adopt the following elements to the Article 134 offense:
(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 1 November 2009 and on or about 27 May 2010, cause to be
published on the internet intelligence belonging to the United States government;
(2) That the accused did so wrongfully and wantonly;
(3) That the accused had knowledge that intelligence published on the internet is
accessible to the enemy; and
(4) That, under the circumstances, the conduct of the accused was to the prejudicial
of good order and discipline in the armed forces and of a nature to bring discredit
upon the armed forces.
The purpose of the preemption doctrine is to "prevent a prosecutor from circumventing
an essential element of an offense under the Code." United States v. Wagner, 52 M.J. 634, 637
(N-M. Ct. Crirn. App. 1999); see also McGuinness, 35 M.J. at 152 ("the underlying basis for the
preemption doctrine is Congress' and this Court's longstanding unwillingness to permit
prosecutorial authorities 'to eliminate vital elements from common law crimes and offenses
expressly defmed by Congress and permit the remaining elements to be punished as an offense
under Article 134" (citing United States v. Norris, 1953 WL 1616 (C.M.A. 1953)); but see also
Erickson, 61 M.J. at 233 ("[S]imply because the offense charged under Article 134 embraces all
but one element of an offense under another article does not trigger operation of the preemption
doctrine."). Here, the Article 104 offense and the Article 134 offense consist of different
elements of proof, targeting distinct courses of criminal conduct.

4

21177

The Article 134 offense is not composed of a residuum of elements of the Article 104
offense. First, each offense requires a different mens rea. See Enclosure 1. The Article 134
offense requires that the accused "wrongfully and wantonly" caused to be published on the
internet intelligence belonging to the United States government. 2 In contrast, the Article 104
offense requires that the accused "knowingly" gave intelligence to the enemy. 3 Second, the
Article 134 offense requires proof that the accused caused intelligence to be published on the
internet. The Article 104 offense has no such element. See United States v. Kowalski, 69 M.J.
705, 707 (C.G. Ct. Crim. App. 2010) (holding that Articles 125 and 120 are not preempted by
Article 134 because those punitive articles "have an obvious additional element"); see also
United States v. Tenney, 60 M.J. 838, 842 (N-M. Ct. Crim. App. 2005) ("[T]he federal bank
fraud statute is not a residuum of elements of larceny, but rather, requires that the Government
prove an additional element, namely, that the appellant defrauded a financial institution."). The
Government's Response to Defense Bill of Particulars does not create this element for the Article
104 offense. See Enclosure 2; see also United States v. Fosler, 70 M.J. 225, 245 (C.A.A.F.
2011) (noting that the purpose of a bill of particulars is to provide notice to the defense). Third,
the Article 134 offense requires the misconduct to be "prejudicial to good order and discipline in
the armed forces and[] of a nature to bring discredit upon the armed forces." See Enclosure 1;
see also Fosler, 70 M.J. at 230 (stating that the three clauses of Article 134 are three distinct and
separate parts); see also Kowalski, 69 M.J. at 707 (Articles 125 and 120 are not preempted by
Article 134 because those punitive articles "have an obvious additional element"). Fourth, the
Article 134 offense requires that the accused had knowledge that intelligence published on the
internet is accessible to the enemy. See id. Fifth, the act underlying the Article 134 offense is
different than the act underlying the Article 104 offense. The Article 134 offense requires the act
of causing intelligence to be published on the internet, and the Article 104 offense requires the
act of giving intelligence to the enemy. See Enclosure 1. Black's Law Dictionary defmes the act
of giving as "to voluntarily transfer to another without compensation" and the act of causing as
"to bring about or effect." Black's Law Dictionary (9th ed. 2009). And lastly, the Article 104
offense requires an additional element of receipt of intelligence by the enemy; the Article 134
offense does not. In sum, the charges share few, if any, elements.
As in Anderson, the Article 104 and Article 134 offenses may encompass "parallel facts"
yet are "nevertheless directed at distinct conduct. " See Anderson, 68 M.J., at 387. In Anderson,
"the charges were based on a single transmission of information to those appellant believed to be
the enemy." Id., at 380. Here, the charges are based on a series oftransmissions of information,
yet are directed at distinct criminal conduct. See Enclosures 1-2; see also United States v.
Canatelli, 5 M.J. 838, 841 (A.C.M.R. 1978) (noting that the preemption doctrine does not apply
2

'"Wanton' includes 'reckless,' but ... may, in a proper case, connote willfulness, or a disregard of probable
consequences, and thus describe a more aggravated offense." UCMJ art. lll(c)(8) (2008) (defining "wanton" under
Article 111, UCMJ); see also Model Penal Code Section 2.02(2)(c) ("A person acts recklessly with respect to a
material element of an offense when he consciously disregards a substantially and unjustifiable risk that the material
element exists or will result from his conduct.").
3

"A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the
nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such
circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain
that his conduct will cause such a result." Model Penal Code Section 2.02(2)(b).

5

21178

when the offenses are separate and distinct crimes). The defense argues the charges are aimed at
the exact same conduct- the accused's alleged publication ofUnited States intelligence
information on the internet. To the contrary, the Article 134 offense addresses misconduct that is
distinct from the misconduct covered under the Article 104 offense. The Article 134 offense is
directed to hold a Soldier criminally liable for causing intelligence to be published on the
internet, with the knowledge that intelligence published on the internet is accessible to the
enemy, without any requirement of the enemy being in possession of the intelligence. The
Article 104 offense is directed to hold a Soldier criminally liable for knowingly giving
intelligence to the enemy. See Canatelli, 5 M.J. at 841 .
Accordingly, this Court should answer the second prong of the preemption doctrine in the
negative. The Article 134 offense is not preempted by Article 104.

II:

THE OFFENSE FOR WHICH THE ACCUSED IS CHARGED IS NOT
PUNISHABLE UNDER ARTICLE 92.

In the alternative, the defense argues that the Article 134 offense must be charged as a
violation of Article 92, UCMJ, in light of Army Regulation (AR) 380-5, para. 1-21a. See
Enclosure 3. The defense bases its argument largely upon the Air Force Court of Criminal
Appeals ruling in Borunda. See United States v. Borunda, 67 M.J. 607 (A.F. Ct. Crirn. App.
2009). In Borunda, the court held that "when a lawful general order or regulation proscribing the
[offense] exists, an order or regulation which by defmition is punitive, the [offense], if charged,
will only survive legal scrutiny as a violation of Article 92(1) and not as a violation of Article
134." Id., at 609. Where a lawful general order or regulation does not exist; the prosecutor is "at
legal liberty to charge the [accused's offense] as a violation of Article 92(3), UCMJ, or Article
134, UCMJ[. ]" I d., at 609-10. Here, no lawful general order or regulation exists that governs
the specific misconduct which serves as a basis for the Article 134 offense.
The Article 134 offense is distinct from an Article 92 offense under AR 380-5, para. 121a, for many reasons. See UCMJ art. 92 (2008). First, AR 380-5, para. 1-21a, subjects
Department of Army personnel to sanctions, not limited to UCMJ action, if they "disclose
classified or sensitive information to unauthorized persons."4 Enclosure 3 (emphasis added).
Proving information is "classified or sensitive" requires, inter alia, proof that the information is
classified or sensitive (e.g., a classification review). On the other hand, the accused is charged
with, inter alia, causing to be published on the internet "intelligence belonging to the United
States." Enclosure 1 (emphasis added). Intelligence is not limited only to classified or sensitive
information. Accordingly, such misconduct falls outside the generalized misconduct proscribed
under AR 380-5, para. 1-21a. Second, the mens rea under the Article 134 offense and AR 380-5
are different. The Article 134 offense requires that the accused acted ''wrongfully and
wantonly." Enclosure 1. AR 380-5, para. 1-21a, subjects Department of Army personnel to
sanctions if they commit misconduct "knowingly, willfully, or negligently." Enclosure 3.
Lastly, the Article 134 offense, as written, requires that the accused had "knowledge that
intelligence published on the internet is accessible to the enemy." Enclosure 1.
4

Sanctions are not limited to UCMJ action, but also can include, without limitation, warning, reprimand,
suspension without pay, forfeiture of pay, removal, discharge, loss or denial of access to classified information, and
removal of original classification authority. See Enclosure 3.

6

21179

In sum, the Article 134 offense captures more than classified or sensitive information and
requires additional elements and a different mens rea than an Article 92 offense under AR 380-5,
para. 1-21a. Accordingly, the prosecution is "at legal liberty to charge the [accused's offense] as
a violation of Article 92(3), UCMJ, or Article 134[.]" Borunda, 67 M.J. at 609-10.
CONCLUSION
Based on the above, the prosecution requests that the Court deny Defense Motion to
Dismiss Specification 1 of Charge II for Failure to State an Offense because the Article 134
offense is neither preempted by Article 104 nor punishable under Article 92.

"i)JjEtWHYTE

CPT, JA
Assistant Trial Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 12 April2012.

Qjj~TE

CPT, JA
Assistant Trial Counsel

7

Appellate Exhibit 60
Enclosure 1
is the charge sheet

21181

Appellate Exhibit 60
Enclosure 2
has been entered into the

record as
Appellate Exhibit 14

21182

UNITED STATES OF AMERICA

Prosecution Response to

V.

Defense Motion to Dismiss Specification 1
of Charge I I for Failure to
State an Offense

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Enclosure 3
12 April 2012

21183

Army Regulation 380-5

Security

Department of
the Army
Information
Security
Program

Headquarters
Department of the Army
Washington, DC
29 September 2000

UNCLASSIFIED

21184

ha^e confidence in the sharing of information with other agencies, the national, O^O, and OA policy,contained in this
regulation, will be followed.
^. I^nless otherwise noted, requests for waiters to the requirements contained in this regulation,will be submitted,
through command channels, to O A M I ^ I I . ^ai^ers to O^O requirements will be forwarded by O A ^ I ^ f l , for
decision to the Assistant Secretary of defense for ^ommand,^ontrol,^otnmunications, and Intelligence (ASO(^3I)).
I^or requirements related toTwo^I^erson Integrity (TT^I),I^,I^oreign^o^ernment Information (^^I) (including ^orth
Atlantic Treaty Organisation (^ATO)), and security arrangements for international programs, waiters will be forwarded to the lender Secretary of defense (I^olicy)(I^SO(I^)). ^ai^ers for SAI^s will be submitted, through SAI^s
channels,toOAMI^TIf^r coordination withTMOand,as required, fbrwardedtothel^nderSecretaryof defense
(Special I^rograms)(l^SO(SI^)) The ASO(^3I) and I^SO(I^) are responsible for notifying the director
the waiters approved that in^ol^e
I^^^8 and its implementing directives.
^. ^eforesubmittingarequest for wai^er,the requesting authority willconsider risk management factors such as
criticality,sensiti^ity,and^alue of the information, analysis of the threats both known and anticipated,^ulnerability to
exploitation,andcountermeasttre benefits versus cost (national sect^ty cost and resot^ce cost). I^equests for waiter
must contain sufficient infortnation to permitacomplete and thorot^h analysis to be made of the impact on national
sect^ty if the waiter is appro^ed.The waiter request will also describe all the factors creating the special situation and
the alternative or compensatory measures which make sure the protectionafforded the infortnation is sufficient to
reasonably deteranddetect loss or unauthori^eddisclosure. Therequestingcommand will maintaindocumentation
regarding approved waiters, including the alternative or compensatory measttres approved and in use, and furnish this
documentation, upon request,to other agencies andtootherArmycommands,withwhom classified informationor
secure facilities are shared.
^ote:^ai^ers granted before the effective date of this regulation are canceled no later than one year after the effective
date of this regulation, ^ew^updated waiter requests maybe submitted prior to cancellation date.
^. Throughout this regtilation there are references to policy subject to MA^OM approval or subject to policy as the
MA^OM directs, ^ e r e that language, insubstance, isused, theMA^OMcomtnander,ortheI^^OASAAA, for
cases in^ol^ingfl^OA and its I^ield Operating Agencies (I^OA), can delegate such approval authority.The delegations
will be in writing.Acopy of such delegations will be maintained by the appointing official and reviewed periodically
for review of need for continuation, ^ e r e this regulation specifically specifies waiter authority to a MA^OM
commander or the I^^OASAAA,that authority resides solely with the MA^OM commander or It^OASAAA and
will not be further delegated.
Section^ii
Corrective Actions and Sanctions
^^^O.Oenerai
commanders will establish procedures to make sure that prompt and appropriate action is taken concemingaviolation
of the provisions of this regulation, especially in those cases in^ol^ing incidents which can put classified information at
riskofcompromise,unauthori^eddisclosure,or improper classification of information. Such actions will focus ona
correction or elimination ofthe conditions that caused or contributed to the incident.
^ - ^ L Sanctions
^. f^A personnel will be subject to sections if they knowingly, willftilly, or negligently—
(1) disclose classified or sensitive information to unauthorised persons.
(^) classify or continue the classification ofinformation in ^iolationof thisregulation.
(3) violate any other provision of this regulation.
^. Sanctionscan include, but are not limited to warning, reprimand, suspension without pay, forfeiture of pay,
removal, discharge, loss or denial of access to classified information, and removal of original classification authority.
Action can also be taken under the I^niformOodeofMilitaryJustice(I^^MJ) for violations ofthat ^ode and under
applicable criminal law, i f warranted.
^. Original classification authority will be withdrawn for individuals who demonstrateadisregard or pattern of error
in applying the classification and sensitivity standards ofthis regulation.
^eportin^ o^ incidents
1^0 1^^^8, paragraph ^.7(e)(^), requires that the director of thelSOO be advised of instances inwhichclassif^ed
informationisknowingly,willfnlly,or negligently disclosed tounauthori^edpersons,or instances ofclassifying,or
continuing the classification of, information in violation of this regulation. I^eports of those instances will be submitted
through command channels t o O A M I ^ f l for forwarding to the director of thelSOO and other defense officials as
appropriate. See chapter 1^ for reporting of other sect^ty incidents.

A^ ^ 0 ^ 5 ^ ^ ^ September 2000

21185

13 April2012
MEMORANDUM FOR RECORD
SUBJECT: Detailed Military Counsel

1. I have thoroughly discussed my options regarding my detailed military counsel with Mr.
Coombs. We have spoken about the advantages and disadvantages of retaining my detailed
counsel, MAJ Matthew Kemkes and CPT Paul Bouchard, on my case.
2. I elect to excuse my detailed counsel MAJ Kemkes and CPT Bouchard. I request that CPT
Joshua Tooman be detailed to my case as my military counsel. I do not request any other
defense counsel to be detailed to my case at this time.

...

APPELLATE EXIDBIT L-X
Page_L_ ofPage(s) \

I

21186

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)
)

DEFENSE MOTION TO
DISMISS THE SPECIFICATION
OF CHARGE I FOR FAILURE
TO STATE AN OFFENSE

DATED: 29 March 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law,
Rule for Courts Martial (R.C.M.) 907(b)(1)(B), and the First and the Fifth Amendments
to the United States Constitution, requests this Court to either dismiss the Specification of
Charge I for failing to state an offense or determine that the term “indirectly,” as used in
Article 104, is unconstitutionally vague in violation of the First and Fifth Amendments
and renders Article 104 substantially overbroad in violation of the First Amendment to
the United States Constitution.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. The Defense, as the moving party, bears the burden of this motion by a preponderance
of the evidence pursuant to R.C.M. 905(c)(1) and (2).
FACTS
3. PFC Manning is charged with five specifications of violating a lawful general
regulation, one specification of aiding the enemy, one specification of conduct prejudicial
to good order and discipline and service discrediting, eight specifications of
communicating classified information, five specifications of stealing or knowingly
converting government property, and two specifications of knowingly exceeding
authorized access to a government computer, in violation of Articles 92, 104, and 134,
Uniform Code of Military Justice (UCMJ) 10 U.S.C. §§ 892, 904, 934 (2010). The case
has been referred to a general court martial by the convening authority with a special
instruction that the case is not a capital referral.

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United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

4. In the Specification of Charge I, the Government pleads that PFC Manning “between
on or about 1 November 2009 and on or about 27 May 2010, without proper authority
knowingly gave intelligence to the enemy, through indirect means.” On 14 February,
2012, the Defense pursuant to R.C.M. 906 moved this Court to direct the Government to
respond to a bill of particulars in the subject case on the grounds that it was necessary for
PFC Manning to understand the charges against him so that he could adequately prepare
his defense and not be subject to unfair surprise at trial. The Defense asked in its
particulars, “How did PFC Manning knowingly give intelligence to the enemy?” The
Government’s response was that PFC Manning knowingly gave intelligence to the enemy
by “transmitting certain intelligence, specified in a separate classified document, to the
enemy through the WikiLeaks website.” See Government Bill of Particulars. The
Government’s theory of how PFC Manning knowingly gave information to the enemy
fails to allege the requisite intent within the meaning of Article 104 and, as such, the
Specification and Charge should be dismissed for failure to state an offense. In the
alternative, the Defense argues that Article 104, as applied in this case, violates the Due
Process and First Amendment rights of PFC Manning.
WITNESSES/EVIDENCE
5. The Defense does not request any witnesses be produced for this motion. The
Defense respectfully requests this court to consider the following evidence in support of
the Defense’s motion.
a. Chat Logs Excerpt;
b. Charge Sheet;
c. Continuation of DD Form 457.
LEGAL AUTHORITY AND ARGUMENT
A.

The Government Fails to State an Offense Because It Has Failed to Allege
the Requisite Intent Under Article 104

6. The Government fails to state an offense under Article 104 because it has not alleged
the requisite intent. Every court interpreting Article 104(2) has held that the Government
must prove general criminal intent to give intelligence to, or communicate with, the
enemy; indeed, no prosecution under this Article has ever been maintained without some
allegation of mens rea. Additionally, if the Government’s interpretation of “indirectly” is
to be accepted, a staggering amount of conduct would be punishable under Article 104.
Accordingly, the Government’s interpretation of “indirectly” is untenable because it does
not require a showing of the requisite criminal intent.
2

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United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

7. Article 104 punishes “[a]ny person who – (1) aids, or attempts to aid, the enemy with
arms, ammunition, supplies, money, or other things; or (2) without proper authority,
knowingly harbors or protects or gives intelligence to, or communicates or corresponds
with or holds any intercourse with the enemy, either directly or indirectly.” 10 U.S.C. §
904. The Government’s theory – that PFC Manning indirectly aided the enemy because
he knowingly caused to be published on the internet United States intelligence with the
knowledge that such intelligence would be accessible to the enemy – does not state an
offense because it does not allege that PFC Manning acted with the requisite intent.1
8. Courts have uniformly held that the Government must allege and prove a general
criminal intent to give intelligence to, or communicate with, the enemy under Article
104(2). See United States v. Anderson, 68 M.J. 378, 387 (C.A.A.F. 2010); United States
v. Batchelor, 22 C.M.R. 144, 157 (C.M.A. 1956) (expressing “no doubt” that Article 104,
which “is so closely akin to treason” requires a “showing of criminal intent”); United
States v. Olson, 20 C.M.R. 461, 464 (A.B.R. 1955). In fact, no prosecution under Article
104(2) has been maintained without an allegation that the accused intended to give
intelligence to, or communicate with, the enemy in some way.
9. In Olson, for example, the accused was a prisoner of war convicted under Article 104
for aiding the enemy by making speeches and writing publications favorable to his
captors and unfavorable to the United States. 20 C.M.R. at 462. In affirming the
conviction, the United States Army Board of Review held that Article 104 “does require
a general evil intent in order to protect the innocent who may commit some act in aiding
the enemy inadvertently, accidentally, or negligently.” Id. at 464. The court found the
accused’s conduct to evidence this requisite general “evil intent.” Id.
10. Similarly, the Court of Military Appeals in Batchelor held that a prosecution under
Article 104 requires a showing of general intent to aid the enemy. 22 C.M.R. at 157.
The accused in Batchelor was also a prisoner of war who made several speeches and
public broadcasts within his prison camp that criticized and condemned the United States.
Id. at 150. The accused also directly gave information regarding fellow prisoners of war
to his captors. Id. at 150-51. In affirming his conviction, the court highlighted the
significance of the accused’s direct participation with an enemy of the United States by
approving of the law officer’s instructions on the elements of Article 104:
He [the law judge] informed the court-martial members that a verdict of
guilty could not be returned unless they were satisfied beyond a
reasonable doubt that the accused, without proper authority, had
1

The Government has proceeded under the “gives intelligence to . . . the enemy, either directly or
indirectly” clause of Article 104(2). 10 U.S.C. § 904(2). It has not proceeded specifically under the theory
that PFC Manning improperly “communicat[ed]” with the enemy. However, if the Government’s
interpretation of the term “indirectly” is accepted, that interpretation will apply equally to the clause
prohibiting communication, thereby sweeping in an enormous amount of constitutionally protected speech.

3

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United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

knowingly participated with the Chinese Communists in planning a
subversive organization, had knowingly conducted study groups, made
speeches, drafted and circulated “peace” petitions, and expounded
Communistic propaganda viewpoints, and that he knew at the time that the
people he was collaborating with were enemies of the United States. The
law officer then characterized these offenses as requiring a general
criminal intent and instructed on honest belief as a defense.
Id. at 156 (emphases supplied). The court also approved the law officer’s instructions on
the term “knowingly:”
“Specifications 1 and 2 of Charge I allege ‘knowingly communicated,
corresponded, and held intercourse with the enemy.’ You are advised that
by ‘knowingly,’ as used in Specification 1 and Specification 2 of Charge I
is meant that accused knew he was dealing with an enemy of the United
States and that he had full knowledge of all the facts alleged in the
specification after the word ‘knowingly.’”
Id. at 156-57 (emphasis supplied) (quoting law officer’s instructions). The court
emphasized that “[w]e have no doubt that [defense] counsel are on sound ground when
they assert that [Article 104] requires a showing of criminal intent, and the Government
concedes that premise to be true . . . . [S]urely an offense which is so closely akin to
treason and may be punished by a death sentence cannot be viewed as a ‘public welfare’
kind of dereliction.” Id. at 157. The court concluded that “the law officer’s instructions,
requiring as they did the finding of general criminal intent and a finding as to words
importing criminality, were correct.” Id. at 158. Therefore, the accused’s knowledge that
he was dealing with the enemy was central to finding the general criminal intent to aid
the enemy, an essential element of an Article 104 prosecution.
11. Along the same lines, the Court of Appeals for the Armed Forces in Anderson
demonstrated the necessity of a general criminal intent to aid the enemy in an Article 104
charge. The accused in Anderson was convicted of attempting to provide sensitive
intelligence information to the enemy. 68 M.J. at 380. Specifically, the accused
provided emails including “comprehensive information about the number of soldiers in
his unit, their training programs, and the precise location to which his unit would be
deploying” to a person he believed to be a “Muslim extremist,” who in reality was a
concerned American citizen attempting to thwart terrorist activities. Id. at 381. The
accused also met with undercover FBI agents whom he believed to be Al Qaeda
operatives and disclosed to them “computer diskettes containing classified information on
the vulnerabilities of various military vehicles, the vulnerabilities of his unit as they
travelled to Iraq, and other sensitive information.” Id. The Anderson Court highlighted
the need for a general criminal intent under Article 104 by contrasting Article 104 with
the more general Article 134:

4

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United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

[W]hile the two charges in this case have parallel facts, as charged they
are nonetheless directed at distinct conduct. The Article 104, UCMJ,
charge was directed at [Anderson's] attempt to aid the enemy directly.
The Article 134, UCMJ, charge was directed towards the distribution of
sensitive material to individuals not authorized to receive it-in this case
Criminal Investigation Command agents posing as the enemy, but the
reasoning could just as easily be applied to the distribution of information
to individuals who are not necessarily the enemy, such as a newspaper
reporter, or for that matter the private citizen who first encountered
[Anderson] on the “Brave Muslim” website. Unlike Article 104, UCMJ,
the general offense as charged prohibits the dissemination of the
information regardless of the intent behind that dissemination. If this
distinction was not permissible in light of Article 104, UCMJ, Congress
was free to clearly state that Article 104, UCMJ, supersedes Article 134,
UCMJ, in this context.
Id. at 387 (emphasis supplied). Thus, Anderson makes clear that Article 104(2) requires
the Government to allege that the accused intended to directly or indirectly provide
intelligence to, or communicate with, the enemy; mere dissemination of information to
persons unauthorized to receive it is insufficient without the necessary criminal intent.
See id.; Olson, 20 C.M.R. at 464.
12. Finally, the general criminal intent to aid the enemy was readily apparent in several
other Article 104 cases where the court did not specifically address the issue of requisite
intent under Article 104. In United States v. Sombolay, for example, the accused sold
U.S. intelligence information to an undercover U.S. intelligence agent posing as a
representative of the Jordanian government. 37 M.J. 647, 648 (A.C.M.R. 1993). The
accused had also previously sold intelligence information to representatives of Iraq. Id.
Similarly, in United States v. Garwood, the accused, a prisoner of war in a Vietnamese
prison camp, informed against his fellow prisoners and helped the captors lead political
indoctrination discussions among the prisoners. 16 M.J. 863, 867 (N-M.C.M.R. 1983),
aff’d, 20 M.J. 148 (C.M.A. 1985). Likewise, the accused in United States v. Johnson
admitted to attempting to contact the Viet Cong on two separate instances of
unauthorized absence. 43 C.M.R. 160, 161 (C.M.A. 1971). Along the same lines, in
United States v. Dickenson, the accused, a prisoner of war in a Chinese prison camp in
Korea, wrote petitions and made speeches favorable to the Chinese Communists and
unfavorable to the United States and also informed against fellow prisoners. 20 C.M.R.
154, 171 (C.M.A. 1955). In each of these cases, the requisite general criminal intent to
provide intelligence to, or communicate with, the enemy was evident from each
accused’s conduct.
13. It is clear that in order to state an offense under Article 104(2), the Government must
allege that PFC Manning intended to “give[] intelligence to . . . the enemy” and that PFC
Manning did so through indirect means. The intent required is the intent to give the
5

21191

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

intelligence to the enemy. For instance, if PFC Manning had printed intelligence
information and contacted FedEx to deliver the information to the enemy, he would
presumably be guilty of “giv[ing] intelligence . . . to the enemy” indirectly. The term
“indirectly” punishes conduct where an accused employs a third party intermediary for
the purpose of “giv[ing] intelligence to . . . the enemy.” The term “indirectly” is not
intended to capture the scenario where an accused’s disclosure to a third party has the
eventual result of intelligence information being accessible to the enemy.
14. Intending to “give[] intelligence to . . . the enemy” and knowing that, if intelligence
information is improperly disclosed, it may potentially be accessible to the enemy are two
very different things. The former criminalizes an act with a guilty mind – the intent of
the accused to “give[] intelligence to . . . the enemy.” The latter, on the other hand,
criminalizes the inadvertent, accidental, or negligent conduct that Article 104(2) is clearly
not intended to reach. See Olson, 20 C.M.R. at 464. To hold that negligent conduct in
disclosing intelligence information, devoid of an intent to actually “give[] intelligence . . .
to the enemy,” is actionable under Article 104 is to turn a crime that carries with it the
possibility of the death penalty into a strict liability offense. Such an interpretation is not
tenable.
15. The interpretation of Article 104(2) as requiring intent to give intelligence to the
enemy is further supported by the Military Judges’ Benchbook. In the Model
Specification to 104(2) (“Giving Intelligence to the Enemy”), the Military Judges’
Benchbook provides:
b. MODEL SPECIFICATION:
In that __________ (personal jurisdiction data) did, (at/on board—
location), on or about __________, without proper authority, knowingly
give intelligence to the enemy (by informing a patrol of the enemy’s
forces of the whereabouts of a military patrol of the United States forces)
(__________).
Dept. of the Army, Pamphlet 27-9, Legal Services, Military Judges’ Benchbook, para. 328-4 (1 Jan. 2010) [hereinafter Benchbook] (emphasis supplied). The term “knowingly”
means that the accused had to intend to give the intelligence to the enemy, not that the
accused knew that, by giving it to a third party, it might eventually end up in the hands of
the enemy.
16. Although the Model Specification for “Giving Intelligence to the Enemy” does not
contain any specific information about doing so through indirect means, the Model
Specification for “Communicating with the Enemy”2 does:
2

Giving intelligence to the enemy is a particularized form of communicating with the enemy; thus, the
Model Specifications for communicating with the enemy are also broadly applicable to giving intelligence
to the enemy.

6

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United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

b. MODEL SPECIFICATION:
In that __________ (personal jurisdiction data) did, (at/on board—
location), on or about __________, without proper authority, knowingly
(communicate with) (correspond with) (hold intercourse with) the enemy
(by writing and transmitting secretly through lines to one__________
whom he/she, the accused, knew to be (an officer of the enemy’s armed
forces) (__________) a communication in words and figures substantially
as follows, to wit: (__________) (indirectly by publishing in __________,
a newspaper published at __________, a communication in words and
figures as follows, to wit: __________, which communication was
intended to reach the enemy) (__________).
Id. para. 3-28-5. The Model Specification contemplates specifically the scenario where
“a newspaper” is the method by which the accused indirectly communicated with the
enemy. Under the Model Specification, the communication via the newspaper
intermediary must have been “intended to reach the enemy.” Id. Where the accused did
not intend to reach the enemy – even if the accused knew that the information or
communication published by the newspaper could potentially be accessible to the enemy
– an offense cannot be stated under Article 104(2).
17. The Government has not properly alleged that PFC Manning indirectly gave
intelligence to the enemy under Article 104(2). The Government has not alleged that
PFC Manning intended to give intelligence to, or communicate with, the enemy in
making the alleged disclosure to WikiLeaks. Rather, the Government has merely alleged
that PFC Manning had knowledge that the information, if ultimately published, might be
accessible to the enemy and that such information might help the enemy. Such a feeble
mens rea allegation is patently insufficient to establish the requisite intent under Article
104.
18. Not only has the Government failed to adduce any evidence that PFC Manning
intended to give intelligence to the enemy through indirect means, but there is evidence
suggesting the opposite – that PFC did not intend to give intelligence to the enemy. In
the purported chat logs between PFC Manning and government informant Adrian Lamo,
Lamo allegedly asked PFC Manning why he did not sell the information to a foreign
government and “get rich off it[.]” In response, PFC Manning expressly disclaimed any
intent to help any enemy of the United States:
[B]ecause it’s public data . . . it belongs in the public domain . . .
information should be free . . . it belongs in the public domain . . . because
another state would just take advantage of the information . . . try and get
some edge . . . if it’s out in the open . . . it should be a public good.
See Attachment A (Chat Logs between PFC Bradley Manning and Adrian Lamo (last
visited on 22 March 2012), available at http://www.wired.com/threatlevel/2011/07/
7

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United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

manning-lamo-logs/ (emphasis supplied)). Far from intending to aid any enemy of the
United States, PFC Manning’s actions and statements illustrate a conscious rejection of
any such ill motive. Indeed, PFC Manning refused to sell the information to another
country, even though he could have financially benefitted by doing so, because he did not
want an enemy of the United States to “‘take advantage of the information[.]’” Id. The
chat logs show that since PFC Manning did not intend to aid the enemy, he surely did not
intend to give intelligence information to the enemy. In this respect, PFC Manning’s
alleged conduct and statements stand in stark contrast to the conduct of the accused in
Anderson, who actively attempted to directly give sensitive information to Al Qaeda
operatives in an effort to sabotage American operations abroad. See Anderson, 68 M.J. at
381.
19. Thus, because the Government has not alleged that PFC Manning acted with the
requisite intent to give intelligence to, or communicate with, the enemy, the Government
does not state a cognizable Article 104 offense against PFC Manning. Accordingly, this
Specification and Charge should be dismissed.
B.

The Government’s Interpretation of Article 104, as Applied in This Case,
Renders Article 104 Unconstitutionally Vague Under the Fifth Amendment
to the United States Constitution

20. In the alternative, the Defense submits that an expansive reading of “indirectly,” as
applied in this case, renders Article 104 unconstitutionally vague in violation of the Due
Process Clause of the Fifth Amendment. If Article 104 is interpreted to reach PFC
Manning’s alleged conduct, it would be constitutionally defective because it would fail to
provide sufficient notice of what conduct is prohibited and would fail to provide
sufficient guidelines to govern law enforcement.
21. As a general rule, “the void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). The
proper inquiry in a vagueness challenge to an Article of the UCMJ is whether the
challenged Article provides sufficient warning for particular accuseds to reasonably
understand that their specific conduct was included within the challenged Article’s
prohibition. See Parker v. Levy, 417 U.S. 733, 756-57 (1974); United States v. Nat’l
Diary Prods. Corp., 372 U.S. 29, 32-33 (1963); United States v. Brown, 45 M.J. 389, 394
(C.A.A.F. 1996); United States v. Johanns, 20 M.J. 155, 158, 161 (C.M.A. 1985); United
States v. Hecker, 42 M.J. 640, 642-43 (A.F. Ct. Crim. App. 1995) (adding that “[a] penal
regulation must be definite and certain, strictly construed, and any doubt with respect to it
must be resolved in favor of the accused.”) (alterations and quotations omitted). The
Supreme Court has pointed out that while both actual notice to the citizenry and arbitrary
enforcement are prime concerns of the doctrine, the more important requirement is “‘the
8

21194

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

requirement that a legislature establish minimal guidelines to govern law enforcement.’”
Kolender, 461 U.S. at 357-58 (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)).
22. The phrase “indirectly” in Article 104, as interpreted by the Government, is
unconstitutionally vague under the Due Process Clause of the Fifth Amendment because
it would not provide sufficient notice of the proscribed conduct and would fail to
establish any guidelines to govern law enforcement.
23. If the Government’s interpretation of Article 104 is accepted, Article 104 would be
alarming in scope. Under the Government’s interpretation, no criminal intent is required;
disclosure of information with the mere knowledge that the information disclosed might
be accessible to the enemy is punishable under Article 104. The amount of conduct that
is made subject to potential capital punishment under such an interpretation is staggering.
For example, a top military official discussing what could broadly be classified as
intelligence information with a reporter would be potentially liable under Article 104, as
the official would likely have known that the information could be accessed by the enemy
once the reporter publishes it. Similarly, disclosure of information regarding
insufficiency of soldiers’ weapons, low morale among soldiers in a particular unit, or the
prevalence of Post Traumatic Stress Disorder or suicide among servicemembers would
all be subject to Article 104’s prohibition of “indirectly” providing intelligence
information to, or communicating with, the enemy under the Government’s approach. In
each instance, the servicemember responsible for the disclosure would be subject to a
capital offense notwithstanding the absence of any intent whatsoever to provide
intelligence information to, or communicate with, the enemy.
24. PFC Manning could not have reasonably concluded that causing intelligence
information to be published on the internet would constitute “indirectly” giving
intelligence to, or communicating with, the enemy under Article 104. Similarly, a
servicemember speaking with a reporter about high suicide rates in the Army or about the
prevalence of Post Traumatic Stress Disorder among servicemembers would certainly not
consider this conduct as aiding or communicating with the enemy in any way. To
surprise such an individual with criminal liability under Article 104 clearly offends the
Due Process Clause of the Fifth Amendment.
25. The potential for liability is endless. What if a soldier sends an email to a family
member that contains intelligence information and that family member, in turn, publishes
that information publicly (perhaps on a blog or in an editorial piece)? Has the soldier
“aided the enemy” because he indirectly communicated intelligence information to the
enemy? Does the inquiry turn on whether it was foreseeable that the family member
would disclose the information? Does the inquiry turn on how visible the public
disclosure is? Further, how many links in the chain of “indirectly” could render the
soldier subject to the death penalty? What if the family member forwards the email to a
friend who, in turn, publishes it? Is the soldier guilty of aiding the enemy? The point is

9

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United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

that constitutional infirmities abound where “indirectly” is interpreted as the Government
suggests.
26. Moreover, interpreting the phrase “indirectly” in such an expansive manner would
provide virtually no guidelines to govern law enforcement. Under this definition of
“indirectly,” any time a person subject to the UCMJ places any information on the
internet that might be accessed by an enemy of the United States, that person will be
subject to criminal liability, including the prospect of capital punishment. See 10 U.S.C.
§ 904 (providing for capital punishment, among other punishments). The danger of
arbitrary and discriminatory enforcement under such an extension of Article 104 is
readily apparent: as a staggering amount of conduct would be punishable under Article
104, law enforcement personnel will, in light of scarce resources, need to be very
selective in determining which individuals to prosecute. Such a scenario opens the door
for widespread arbitrary and discriminatory enforcement.
27. Therefore, as the Government’s interpretation of the term “indirectly” would fail to
give sufficient guidelines to law enforcement and would also fail to give reasonable
notice of what conduct Article 104 proscribes, this Court should determine that such an
interpretation renders Article 104 unconstitutionally vague under the Due Process Clause
of the Fifth Amendment.
C.

The Government’s Interpretation of Article 104 Renders Article 104
Substantially Overbroad in Violation of the First Amendment to the United
States Constitution

28. In the alternative, the Defense submits that the Government’s expansive
interpretation of Article 104 renders it substantially overbroad in violation of the First
Amendment. As interpreted by the Government, Article 104 would prohibit a substantial
amount of constitutionally protected speech. Furthermore, this substantial overbreadth
cannot be cured by assurances of prosecutorial restraint.
29. A law may be struck down on overbreadth grounds where “‘a substantial number of
its applications are unconstitutional, judged in relation to the statute’s plainly legitimate
sweep.’” United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 1587 (2010) (quoting
Washington State Grange v. Washington State Republican Party, 522 U.S. 442, 449 n.6
(2008)); see City of Houston v. Hill, 482 U.S. 451, 466-67 (1987).3
3

As is the case with vagueness challenges, military context matters in an overbreadth inquiry. See Parker,
417 U.S. at 758. In Parker, the Supreme Court rejected an overbreadth challenge to Articles 133 and 134
of the UCMJ because, “[w]hile there may lurk at the fringes of the articles . . . some possibility that conduct
which would be ultimately held to be protected by the First Amendment could be included within their
prohibition,” the Court determined that “[t]here is a wide range of the conduct of military personnel to
which Arts. 133 and 134 may be applied without infringement of the First Amendment.” Id. at 760-61. No
such determination could be made with respect to the Government’s interpretation of Article 104 however,

10

21196

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

30. Under the Government’s interpretation, Article 104 establishes “a criminal
prohibition of alarming breadth.” Stevens, 130 S.Ct. at 1588. Article 104 is substantially
overbroad because, if the term “indirectly” is given the interpretation that the
Government puts forth, a substantial amount of constitutionally protected speech would
fall victim to Article 104’s sweeping prohibition. Article 104 categorically prohibits any
unauthorized communication with an enemy, regardless of whether the communication
contains any intelligence information. As a result, if liability exists for issuing a
communication that is not aimed at an enemy but may be indirectly accessed by the
enemy, anyone subject to the UCMJ would be unable to make any public statement on
any subject without fear of exposure to a capital prosecution. A person subject to the
UCMJ could not speak with a newspaper reporter, for example, because the knowledge
that the enemy has access to newspapers and might eventually read the reporter’s article
could transform any communication with the press into a prohibited correspondence with
the enemy and a potentially capital crime.
31. Likewise, Article 104, as interpreted by the Government, could conceivably reach
any information placed on the internet that might be accessed by the enemy, irrespective
of the reason that the information was placed on the public domain in the first place and
regardless of whether the information would aid the enemy in any way. So long as the
person knows that the information can be potentially accessed by the enemy, the
provisions of Article 104 would apply. Such a broad interpretation of Article 104
impermissibly proscribes a substantial amount of constitutionally protected speech. So
interpreted, Article 104 would sweep much more broadly and carry much heavier
consequences than any previous restriction on soldier speech upheld by the Court. As the
impermissible applications of Article 104, as construed by the Government, “far
outnumber any permissible ones[,]” it is substantially overbroad in violation of the First
Amendment.4 Stevens, 130 S.Ct. at 1592.
32. Moreover, assurances of prosecutorial restraint are insufficient to cure
unconstitutional overbreadth. As the Court explained in Stevens, “[t]he Government’s
assurance that it will apply [the statute] far more restrictively than its language provides
is pertinent only as an implicit acknowledgement of the potential constitutional problems
with a more natural reading.” 130 S.Ct. at 1591. Indeed, “[t]he opportunity for abuse,
as any public statement would subject the speaker to prosecution if the enemy could conceivably access it
in some form. Thus, even if there is some conduct to which Article 104 may be constitutionally applied,
there is an astonishingly wide range of speech protected by the First Amendment that would subject the
speaker to prosecution under the Government’s interpretation of Article 104.
4
Even if the Government’s expansive interpretation of Article 104 could somehow be limited so as to reach
only information that could potentially aid the enemy without also reaching indirect communications with
the enemy (a limitation that finds absolutely no support in the text of Article 104 or in the case law
interpreting it), it would still render Article 104 substantially overbroad. Public statements regarding low
morale among a particular unit or high rates of PTSD among servicemembers, for example, which might
later be accessed by the enemy in some form can be construed as potentially aiding the enemy. Thus, under
the Government’s interpretation, Article 104’s fatal overbreadth cannot be avoided.

11

21197

United States v. PFC Bradley E. Manning
Defense Motion to Dismiss

especially where a statute has received a virtually open-ended interpretation, is selfevident.” Hill, 482 U.S. at 466.
33. Therefore, if the Government’s interpretation of “indirectly” is correct, this Court
should determine that Article 104 is substantially overbroad in violation of the First
Amendment.
CONCLUSION
34. Wherefore, in light of the foregoing, the Defense requests this Court either dismiss
the Specification of Charge I for failing to state an offense or determine that the term
“indirectly,” as used in Article 104, is unconstitutionally vague in violation of the First
and Fifth Amendments and renders Article 104 substantially overbroad in violation of the
First Amendment to the United States Constitution.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

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ATTACHMENT A
Alleged Adrian Lamo - PFC Bradlev Manning Chat L02
(02:22:47 PM) bradass87: i mean what if i were someone more malicious
(02:23:25 PM) bradass87: i could?ve sold to russia or china, and made bank?
(02:23:36 PM) why didn?t you??
(02:23:58 PM) bradass87: because it?s public data
(02:24:l5 PM) i mean, the cables
(02:24:46 PM) bradass87: it belongs in the public domain
(02:25:l5 PM) bradass87: information should be free
(02:25:39 PM) bradass87: it belongs in the public domain

(02:26:l8 PM) bradass87: because another state wouldjust take advantage of the
try and get some edge

(02:26:55 PM) bradass87should be a public good

Later excegpt

??4=4s=2o m? or a spy z)

(04:45:48 PM) bradass87: i couldn?t be a

(04:45:59 PM) bradass87: spies dont post things up for the world to see

21199

OFFICIAL USE ONLY

27 March 2012
MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

1. I hereby certify that I have reviewed the following Defense motions for the presence of
classi?ed information:

a) Defense Motion to Dismiss the Speci?cation of Charge 1 for Failure to State an Offense;
b) Defense Motion to Dismiss Speci?cation 1 of Charge 11 for Failure to State an Offense;

and
c) Defense Motion to Dismiss Based Upon Unreasonable Multiplication of Charges

I do not believe that any of these motions contain classi?ed information or information that a
reasonable person could believe to be classi?ed.

2. The Unreasonable Multiplication of Charges motion does cite to classified attachments.
However. these attachments will be provided separately from the motion.

3. The point of contact for this memorandum is die undersigned at



Division
INSCOM G2

OFFICIAL USE ONLY

21200

OFFICIAL USE ONLY

28 March 2012

MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motion
1. I hereby certify that have reviewed the following Defense motion for the presence of
classi?ed information:

a) Defense Motion to Dismiss [793 v3]

I do not believe that this motion contains classi?ed infonnation or information that a reasonable
person could believe to be classi?ed.

2. The point of contact for this memorandum is undersigned at



CASSIUS 7

IS Division
INSCOM G2

OFFICIAL USE ONLY

21201

UNITED STATES OF AMERICA

v.
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

GOVERNMENT RESPONSE
TO DEFENSE MOTION TO
DISMISS THE SPECIFICATION
OF CHARGE I FOR FAILURE
TO STATE AN OFFENSE
12 April 2012

RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny the defense motion to dismiss the Specification of Charge I
for failure to state an offense. The United States also requests this Court deny the defense
request to declare the term "indirectly," as used in Article 104, Uniform Code of Military Justice
(UCMJ), unconstitutionally vague in violation of the First and Fifth Amendments to the United
States Constitution, or substantially overbroad in violation of the First Amendment to the United
States Constitution. Finally, the United States respectfully requests this Court adopt the US.
Department of the Army, Pam. 27-9, Military Judges' Benchbook (1 January 201 0) (Benchbook),
elements for the offense of Giving Intelligence to the Enemy under Article 104, UCMJ.

BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the defense has the burden of persuasion on any factual issue the
resolution of which is necessary to decide the motion. Manual for Courts-Martial (MCM),
United States, Rule for Courts-Martial (RCM) 905(c)(2) (2008). The burden of proof is by a
preponderance ofthe evidence. RCM 905(c)(l).

FACTS

The United States stipulates to the facts as set forth in the defense motion, except for the
following "facts" in paragraph 4:
"The Government's theory of how PFC Manning knowingly gave
information to the enemy fails to allege the requisite intent within
the meaning of Article 104 and, as such, the Specification and
Charge should be dismissed for failure to state an offense. In the
alternative, the Defense argues that Article 104, as applied in this
case, violates the Due Process and First Amendment rights ofPFC
Manning."
Def Mot. at 2. The United States also disputes the following statement in paragraph 3 of the
Defense Motion: "The case has been referred to a general court-martial by the convening

1

21202

authority with a special instruction that the case is not a capital referral." The above-captioned
case was referred to a general court-martial without special instructions.
The United States adds the following additional facts:
The Benchbook publishes the following model specification for Giving Intelligence to the
Enemy under Article 104(2), UCMJ:
In that
(personal jurisdiction data) did, (at/on boardlocation), on or about
, without proper authority,
knowingly give intelligence to the enemy (by informing a patrol of
the enemy's forces of the whereabouts of a military patrol of the
United States forces) (
).
The Benchbook lists the following elements for Giving Intelligence to the Enemy under
Article 104(2), UCMJ:
(1) That (state the time and place alleged), the accused, without proper
authority, knowingly gave intelligence information to (a) certain
person(s), namely: (state the name or description of the enemy
alleged to have received the intelligence information);
(2) That the accused did so by (state the manner alleged);
(3) (state the name or description of the enemy alleged to have
received the intelligence information) was an enemy; and
(4) That this intelligence information was true, at least in part.

WITNESSES/EVIDENCE

The United States requests this Court consider the following enclosures:
1. Department of the Army, Pam. 27-9, Military Judges' Benchbook, Ch. 3, pp. 319-325
(1 January 201 0)
2. Charge Sheet
3. Enclosure 1 to Appellate Exhibit XIV (Bill of Particulars)

LEGAL AUTHORITY AND ARGUMENT

A specification is a plain, concise, and definite statement of the essential facts
constituting the offense charged. RCM 307(c)(3). A specification is legally sufficient when it
(1) alleges all the elements of the offense, (2) provides notice to the accused of the offense
against which he must defend, and (3) gives sufficient facts to protect against re-prosecution.
2

21203

See United States v. Sell, 11 C.M.R. 202, 206 (C.M.A. 1953). Every element must be alleged
expressly or by necessary implication. RCM 307(c)(3). Specific evidence supporting the
allegations ordinarily should not be included in the specifications. RCM 307(c)(3) discussion
(G)(iii).
I.

THE SPECIFICATION OF CHARGE I ADEQUATELY STATES AN OFFENSE.

The Specification of Charge I is legally sufficient because it alleges all the elements of
the Article 104 offense in this case, either expressly or by necessary implication. The
Specification contains the name, rank, and military association of the accused ("Private First
Class Bradley E. Manning, U.S. Army"); the date and place of the offense ("Contingency
Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May
2010"); a description of the offense ("give intelligence to the enemy, through indirect means"),
including the mens rea required ("knowingly"); and includes words indicating criminality
("without proper authority''), as required by RCM 307(c)(3). See RCM 307(c)(3) discussion
(C)(i)-(ii); (D)(i), (iii); (E); (G)(i), (iii). No additional information is required to be alleged. See
id. Further, the Government's filing of a Bill of Particulars in this case cures any notice or
double jeopardy issues by identifying the enemy, the intelligence, and the indirect means. See
Enclosure 3; see also RCM 906(b)(6).
The defense argues that the Specification of Charge I fails to allege a "general criminal
intent." See Def. Mot. at 2-3. However, the Specification of Charge I alleges the accused
"knowingly gave intelligence to the enemy" and that he did so ''without proper authority." See
Charge Sheet. This confusion over what is required to be alleged seems to arise from cases
characterizing the nature of findings under Article 104(2). United States v. Batchelor, 22 C.M.R.
144 (C.M.A. 1956), is instructive on this point. In Batchelor, the Court of Military Appeals held
that Article 104(2) does not require a specific criminal intent; thus, a law officer's instructions on
the elements of Article 104(2) were correct when he characterized Article 104(2) as requiring the
fmding of a general criminal intent and a finding as to words importing criminality. See
Batchelor, 22 C.M.R. at 158. Like the prosecution in Batchelor, the United States agrees that
Article 104(2) requires a showing or finding of criminal intent-but this is wholly different than
what is required to be alleged in a specification. See id. at 157. In this case, the United States
alleged a general criminal intent by specifying that the accused acted "knowingly" and ''without
proper authority." See Charge Sheet. The inclusion of mens rea and words indicating
criminality in the Specification of Charge I confirms the United States has adequately stated an
offense under Article 104(2) in this case.
The defense repeatedly conflates what the United States is required to prove with what
the United States is required to allege in order to adequately state an offense. This is readily
apparent in the defense statement that "courts have uniformly held that the Government must
allege and prove a general criminal intent to give intelligence to, or communicate with, the
enemy under Article 104(2)." Def. Mot. at 3. For this proposition, the defense relies on
Batchelor, United States v. Anderson, 68 M.J. 378 (C.A.A.F. 2010), and United States v. Olson,
22 C.M.R. 250 (C.M.A. 1957). See Def. Mot. at 3. These cases lend no support to the defense
position. As discussed above, Batchelor held that Article 104(2) requires a finding of general
criminal intent. Anderson and Olson are similarly inapplicable. The accused in Anderson was
3

21204

charged with "Attempting to Aid the Enemy" under Article 104(1 ). An "attempt" under Article
104(1) requires the Government to prove a specific intent to aid the enemy as an element ofthe
1
crime ; thus, the Government could not allege any general criminal intent as contemplated by the
defense. See Anderson, 68 M.J. at 384--85, nn. 4--7. As for Olson, the accused was charged with
"Aiding the Enemy" under Article 104(1 ), not "Communicating" or "Giving Intelligence to the
Enemy" under Article 104(2). Olson, 22 CMR at 254. Even assuming, arguendo, that Olson
had been charged with "Communicating" under Article 104(2), "Communicating" and "Giving
Intelligence" are different offenses. They have different model specifications and different
elements. See MCM, United States, pt. IV,~ 28(b)(4)-(5), 28(f)(3)-(4) (2008). Model
specifications are intended to guide drafters by incorporating the necessary elements, and the
Specification of Charge I expressly alleges the elements for "Giving Intelligence" under Article
104(2). See MCM, Punitive Articles Discussion, at IV-1 (2008).
As stated above, the defense motion repeatedly emphasizes what the United States is
required to prove in order to obtain a conviction. As such, this portion of the defense motion
would be more appropriately styled as a motion for a finding of not guilty under RCM 917 after
the close ofthe Government's case. See RCM 917(a). The Specification of Charge I adequately
states an offense under Article 104(2).
II.

ARTICLE 104, AS APPLIED, IS NOT UNCONSTITUTIONALLY VAGUE IN
. VIOLATION OF THE FIFTH AMENDMENT.

The defense argues that the Government's application of Article 104, including the term
"indirectly," renders Article 104 unconstitutionally vague in violation ofthe Due Process Clause
ofthe Fifth Amendment. See Def Mot. at 8. In short, Article 104 is not unconstitutionally
vague because an ordinary Soldier could understand what conduct was prohibited, and the
application of the Article in this case does not encourage arbitrary and discriminatory
enforcement.
Due process requires "fair notice" that an act is forbidden and subject to criminal
sanctions. See United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998); see also Connally v.
General Constr. Co., 269 U.S. 385, 391 (1926) ("A statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application violates due process."). Due process also requires fair
notice as to the standard applicable to the forbidden conduct. See Parker v. Levy, 417 U.S. 733,
755 (1974).
In determining the sufficiency of the notice, courts must examine the law "in light of the
conduct with which [an accused] is charged." United States v. National Dairy Products Corp.,
372 U.S. 29, 33 (1963) (citing Robinson v. United States, 324 U.S. 282 (1945)). There is a
strong presumption of validity that attaches to an Act of Congress; hence, "statutes are not
1

Under Article 104(a)(l), attempting to aid the enemy, the Government must prove (1) That the accused did a
certain overt act; (2) That the act was done with the intent to aid the enemy with certain arms, ammunition, supplies,
money, or other things; (3) That the act amounted to more than mere preparation; and (4) That the act apparently
tended to bring about the offense of aiding the enemy with certain arms, ammunition, supplies, money, or other
things. UCMJ art. 104(b)(2) (2008).

4

21205

automatically invalidated as vague simply because difficulty is found in determining whether
certain marginal offenses fall within their language." Jordan v. De George, 341 U.S. 223, 231
(1951 ). Generally, a statute is not void for vagueness if it defines ''the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson,
461 us 352, 357.
In Parker, the Supreme Court held that the standard of review for ''void for vagueness"
challenges to punitive Articles in the military justice system is whether "one could reasonably
understand that his contemplated conduct is proscribed." Parker, 417 U.S . at 754-57 (''Void for
vagueness simply means that criminal responsibility should not attach where one could not
reasonably understand that his contemplated conduct is proscribed.") (citing National Dairy
Products Corp., 372 U.S. at 32). This standard of review provides Congress more deference in
drafting laws governing the military than civilians. See id. , at 756 ("For the reasons which
differentiate military society from civilian society, we think Congress is permitted to legislate
both with greater breadth and with greater flexibility when prescribing the rules by which the
former shall be governed than it is when prescribing rules for the latter.").

A. A Soldier Could Reasonably Understand that Compromising Intelligence Through an
Intermediary was Subject to Criminal Sanction in the U.S. Army.
It is "settled law that notice is determined through application of an objective test as to
whether a person could 'reasonably understand that his contemplated conduct is proscribed."'
United States v. Saunders, 59 M.J. 1, 10 (C.A.A.F. 2003) (citing Parker, 417 U.S. at 757); see
also United States v. Vaughan, 58 M.J. 29, 41 (C.A.A.F. 2003) (Crawford, J. , concurring) ("[I]t
is not whether [the accused] was on notice that conduct like [his] was [punishable under Article
104], but rather, whether a reasonable enlisted person would be on notice that conduct like [the
accused 's] was [punishable under Article 104]."). Courts may review the Manual for CourtsMartial, military case law, military customs and usage, and military regulations in determining
whether sufficient notice was provided. See Vaughan, 58 M.J. at 30; see also United States v.
Boyett, 42 M.J. 150, 153 (C.A.A.F. 1995) (noting that a court may take judicial notice of
regulations as evidence of military customs).

The very language of Article 104 puts a reasonable Soldier on notice that compromising
intelligence to the enemy through an intermediary would subject him or her to criminal action
under the Article. Article 104 crirninalizes the act of giving intelligence to the enemy, "either
directly or indirectly. " See UCMJ art. 104 (2008). The act must also be done ''without proper
authority." See id. A reasonable Soldier would understand that sending intelligence through
email to the enemy without authority, if the Soldier knew the enemy was on the other end of the
transmission, constitutes "directly" giving intelligence to the enemy. A reasonable Soldier
would also understand that posting intelligence on a website used by the enemy without
authority, if the Soldier knew the enemy used the website, constitutes "indirectly'' giving
intelligence to the enemy. Although Article 104 was written long before the advent of the
internet, reasonable Soldiers understand that use of the internet does not alter the common
understanding of"giving." The language of Article 104 provides sufficient notice that giving
5

21206

intelligence to the enemy through the internet, without authority to do so, is a violation of the
Article.
In addition to the plain reading of Article 104, Army regulations and mandatory training
put every Soldier on notice that disclosing intelligence on the internet, without proper authority,
may subject that individual to action under the UCMJ. Army Regulation (AR) 380-5, para. l2la, states that "Department of Army personnel will be subject to sanctions if they knowingly,
willfully, or negligently disclose classified or sensitive information to unauthorized persons."
US. Dep 't ofArmy, Reg. 380-5, Department of the Army Information Security Program para. l2l(a)(l) (29 September 2009). Those sanctions may include actions "taken under the UCMJ for
violations ofthat Code and under applicable criminal law, ifwarranted." !d., at para. l -2l(b). A
Soldier could reasonably understand, certainly during a time of war, that ''unauthorized persons"
included enemies of the United States. This regulation provides sufficient notice to Soldiers that
compromising intelligence, without proper authority, may subject an individual to criminal
sanctions.
Furthermore, annual Operations Security (OPSEC) training is mandatory for all Soldiers.
See AR 530-1, Operations Security para. 4-2( a)(2)(b) (19 April 2007). OPSEC training under
AR 530-1 puts every Soldier on notice that compromising intelligence on the internet may
subject that person to criminal sanctions. AR 530-1, para. 2-1, states that all Army personnel
''will prevent disclosure of critical and sensitive information in any public domain to include but
not limited to the World Wide Web." !d., at para. 2-l(c). AR 530-1, para. 4-3(b), provides that
"[w ]hile the Internet is a powerful tool to convey information quickly and efficiently, it can also
provide adversaries a potent instrument to obtain, correlate, and evaluate an unprecedented
volume of aggregate information regarding U.S. capabilities, activities, limitations, and
intentions." !d., at para. 4-3(b). AR 530-1, Appendix E-3(a)(2)(b) states that ''the Internet has
become an ever-greater source of open source information for adversaries ofthe U.S., websites
in particular. .. are a potentially significant vulnerability." !d., at Appendix E-3(a)(2)(b). The
failure to comply with AR 530-1 may subject a person to criminal sanction under the UCMJ.
See id., at para. 2-l(b)(2). In short, military regulations and training also provide notice to
Soldiers that compromising intelligence to the enemy, without proper authority, could subject an
individual to disciplinary action under the UCMJ.
Because of the plain language of Article 104, as well as the notice provided by Army
regulations and mandatory training, Soldiers could reasonably understand that knowingly giving
intelligence to the enemy through an intermediary was subject to criminal sanction under the
UCMJ.
B. The Application of Article 104 in this Case does not Encourage Arbitrary and
Discriminatory Enforcement.
The void for vagueness doctrine "focuses both on actual notice to citizens and arbitrary
enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). However, courts recognize ''that
the more important aspect of[the] vagueness doctrine 'is not actual notice, but the other principal
element of the doctrine-the requirement that a legislature establish minimal guidelines to
govern law enforcement."' !d., at 357 (citing Smith v. Goguen, 415 U.S. 566, 574 (1974) (noting
6

21207

that without minimal guidelines, a statute may permit "a standardless sweep [that] allows
policemen, prosecutors, and juries to pursue their personal predilections"). A statute should aim
to contain, but not wholly restrict, the exercise of some discretion in enforcement. See Grayned
v. City of Rocliford, 408 U.S. I 04, 114 (1972) ("As always, enforcement requires the exercise of
some degree of police judgment, but, as confined, that degree of judgment [should be]
permissible.").
Determining whether an Article may lead to arbitrary enforcement requires military
courts to analyze whether an Article provides a clear standard to guide enforcement. See United
States v. Cochrane, 60 M.J. 632, 634 (N-M. Ct. Crim. App. 2004). In Cochrane, the defense
argued a Navy Instruction was void for vagueness because, inter alia, "[i]t [was] impossible to
determine which conduct ic;; 'unlawful' and therefore criminal and which is not under the order
without guessing." ld., at 634. The Court denied this argument because the instruction "[did]
not encourage either arbitrary or discriminatory enforcement." Id. , at 635. Requiring the "intent
to induce intoxication," the Court reasoned, "establishe[d] a clear standard against which an
individual' s conduct is measured." ld., at 635.
Article I 04, by its terms, does not encourage arbitrary and discriminatory enforcement.
Instead, it provides clear standards by which to guide enforcement. Article 104 requires, inter
alia, that the person ''knowingly" give intelligence to the enemy. See UCMJ art. I 04 (2008).
This mens rea requirement guards against arbitrary enforcement by establishing that mere
negligent disclosures or even wanton disclosures are not subject to prosecution under Article
104. In addition to the mens rea requirement, a Soldier must give "intelligence" to the enemy.
See id. The requirement to give "intelligence" further narrows enforcement of the Article
because intelligence "means any helpful information, given to and received by the enemy, which
is true, at least in part." See Benchbook, p. 323 (emphasis added). The requirement of receipt of
intelligence by the enemy ensures that a prosecution will not be pursued without evidence of the
enemy' s possession of the intelligence. Lastly, the Soldier must give intelligence to the enemy
''without proper authority." See UCMJ art. I 04 (2008). This limitation protects the Soldier who
is authorized by position or circumstance to give intelligence and ensures that only wrongful acts
are pursued. The parade ofhypotheticals offered by the defense, such as the argument that a
discussion with a reporter regarding Post-Traumatic Stress Disorder would constitute a violation
of Article 104, ignore these limiting factors and do not constitute an offense punishable under
Article 104. See De£ Mot. at 9.
III.

ARTICLE 104 IS NOT SUBSTANTIALLY OVERBROAD IN VIOLATION OF
THE FIRST AMENDMENT.

The defense argues that the Government's application of Article 104, including the term
"indirectly," renders Article I04 substantially overbroad in violation ofthe First Amendment.
See De£ Mot. at I 0. The defense argument has no merit.
As a practical matter, use of"indirectly" in the context of Article 104 is not novel, nor is
the Government's use of the term within the Specification of Charge I. William Winthrop' s
Military Law and Precedents provides the following guidance:

7

21208

The modes of holding correspondence and g1vmg intelligence
already instanced have been mainly of a direct character. It was,
however, the indirect modes which ... principally exercised the
vigilance of our military authorities. The proceeding of this sort
which it was found especially necessary to denounce and prohibit
was the publication in newspapers of particulars in regard to
[information which] might readily be communicated to the enemy;
and in several instances the offence [sic] thus committed was made
the subject of charges under the [precursor to Article 104], or of
trial by military commission.
The publishing by way of
advertisement in newspapers, of "Personals," by means of which
an indirect correspondence was maintained with individuals within
the enemy's lines, was also expressly prohibited.
William Winthrop, Military Law and Precedents, 634 (2d ed. 1920 reprint). Despite the
historical basis for use of the term "indirectly" in the context of publishing intermediaries, the
defense maintains that the Government's interpretation or application of Article 104 to the
conduct in this case, including use of"indirectly," criminalizes a substantial amount of
constitutionally protected speech. See De£ Mot. at 11. The United States disagrees.
A law may be invalidated as overbroad under the First Amendment if "a substantial
number of its applications are unconstitutional, judged in relation to the statute's plainly
legitimate sweep." United States v. Stevens, 130 S.Ct. 1577, 1587 (quoting Washington State
Grange v. Washington State Republican Party, 522 US 442, 449 n.6 (2008)). The Government's
interpretation or application of Article 104 to the conduct in this case, including use of
"indirectly," does not prohibit constitutionally protected speech. Rather, the defense
mischaracterization ofthe Government's "interpretation" of Article 104 is misguided in that the
hypotheticals they offer do not constitute an offense punishable under Article 104.
The defense argues that Article 104 "categorically prohibits any unauthorized
communication with an enemy, regardless of whether the communication contains any
intelligence information" and warns that the Government could prosecute an individual for "a
communication that is not aimed at an enemy but may be indirectly accessed by the enemy .... "
De£ Mot. at 11. Aside from the fact that this example is inapplicable to the present case, as the
accused was charged with "Giving Intelligence to the Enemy" not "Communicating with the
Enemy," it is an inaccurate and incomplete statement of the law. The defense formulation
ignores the fact that the communication must be intended to reach the enemy. See Benchbook, p.
324. Thus, this hypothetical raises no constitutional issues.
Likewise, the hypotheticals raised by the defense regarding information placed on the
internet that "might be accessed by the enemy" are similarly inapplicable. See De£ Mot. at 11.
The United States has not charged the accused under the Specification of Charge I with knowing
that information "might be accessed by the enemy." See Charge Sheet. The United States has
charged the accused with "knowingly" giving intelligence to the enemy ''through indirect
means." See Charge Sheet. Actual knowledge is required-not knowledge that information
"might be accessed." See UCMJ art. 104(c)(5)(c) (2008). This difference invalidates all ofthe
8

21209

defense hypotheticals involving simple discussions with reporters or the press, and extinguishes
any claim that Article 104 is substantially overbroad. Further, assuming the accused under the
hypothetical "knew" that by giving information to a reporter, he was giving it to the enemy- not
that the accused generally knew that the enemy uses the internet or reads newspapers - the
United States is still required to prove those discussions occurred "without proper authority," a
fact the defense ignores. Lastly, "giving" intelligence requires that the United States prove
receipt of the information by the enemy. See Benchbook, p. 323 ; Winthrop, supra p. 8, at 634
("It is necessary that the enemy shall have been actually informed."). The defense claim that
Article 104 is substantially overbroad in violation of the First Amendment is without merit.

CONCLUSION
The United States respectfully requests this Court DENY the defense motion to dismiss
the Specification of Charge I for failure to state an offense. The United States also requests this
Court deny the defense request to declare the term "indirectly," as used in Article 104,
unconstitutionally vague in violation of the First and Fifth Amendments to the United States
Constitution, or substantially overbroad in violation of the First Amendment to the United States
Constitution. Finally, the United States respectfully requests this Court adopt the Benchbook 's
elements for the offense of Giving Intelligence to the Enemy under Article 104.

c)lJ
~
~MORROW
CPT, JA
Trial Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 12 April2012.

oh~
6£'ANMORROW
CPT, JA
Trial Counsel

9

21210

UNITED STATES OF AMERICA
v.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

Prosecution Motion
for Appropriate Relief to Preclude
Actual Harm or Damage from the
Pretrial Motions Practice and
the Merits Portion of Trial

29 March 2012

RELIEF SOUGHT
I

The United States respectfully requests that the Court preclude the defense from raising
or eliciting any discussion, reference, or argument, to include the introduction of any
documentary or testimonial evidence, relating to actual harm or damage from pretrial motions
related to the merits portion of trial and from the merits portion of trial. The United States does
not dispute whether actual harm or damage is relevant on sentencing. The United States requests
oral argument.
BURDEN OF PERSUASION AND BURDEN OF PROOF

The burden of proof on any factual issue the resolution of which is necessary to decide a
motion shall be by preponderance of the evidence. See Manual for Courts-Martial, United
States, Rule for Courts-Martial (R.C.M.) 905(c)(1) (2008). The burden of persuasion on any
factual issue the resolution of which is necessary to decide a motion shall be on the United States
as the moving party. See R.C.M. 905(c)(2). Whether the Court rules on the admissibility of
evidence before it arises at trial is a decision in the discretion of the military judge. See R.C.M.
906(b)(13).
FACTS

The accused is charged with one specification of aiding the enemy, one specification of
disorders and neglects to the prejudice of good order and discipline and service discrediting,
eight specifications of violations of18 U.S.C.§ 793(e), five specifications of violations of18
U.S.C.§ 641, two specifications of violations of18 U.S.C.§ 1030, and five specifications of
violating a lawful general regulation, in violation of Article 104, 134, and 92, Uniform Code of
Military Justice (UCMJ). See Enclosure 1.
The accused is alleged to have engaged in misconduct relating to, inter alia, more than
127 records, files, or cables and four databases, consisting of more than 720,700 records. See id.
In response, multiple government agencies and departments immediately began measuring what,
if any, harm or damage transpired because of the alleged misconduct. Some of those agencies
and departments prepared damage assessments to memorialize their findings, including the
Information Review Task Force and WikiLeaks Task Force. See Enclosure 2.
On 16 February 2012, the defense submitted its Motion to Compel Discovery for the
damage assessments. See Enclosure 3. The defense argued that the damage assessments were
1

21211

"at odds with the classification review conducted by the OCA" and that the substance "would
undercut the testimony of each Original Classification Authorities (OCAs) for the charged
documents." See id. The defense concluded, both in its Motion to Compel Discovery and at the
public motions hearing, that the damage assessments were material to the preparation of the
defense for both the merits and sentencing, citing articles indicating that the compromised
information "caused only limited damage." See id.
On 23 March 2012, the military judge ordered the United States to produce, inter alia,
any unclassified, discoverable information from those assessments and to "immediately begin the
process of producing the damage assessments that are outside the possession, custody, or control
of military authorities." See Enclosure 2. The United States is in the process of producing those
assessments, or portions thereof, ordered by the military judge.
Producing a damage assessment generally requires the owner of the information to
engage in a four-step process: first, verify the classification of the information; second,
reevaluate the classification of the information; third, determine whether there are
countermeasures to minimize or eliminate the damage to national security; and fourth, prepare
the actual damage assessment. See Enclosure 4.
A damage assessment measures, "given the nature of the information and the
countermeasures, if any, that will be employed, [] the probable impact the compromise will
[have] on our national security." Producing a damage assessment "is sometimes a long-term,
multi-disciplinary analysis of the adverse effects of the compromise on systems, plans,
operations, and/or intelligence." Id.
WITNESSES/EVIDENCE
The United States does not intend to produce any witnesses for this motion. The United
States requests that the Court consider the following enclosures to this Motion in making its
ruling.
1.
2.

Charge Sheet (enclosed in record)
Ruling: Defense Motion to Compel Discovery, 23 March 2012 (Appellate Exhibit
XXXVI)

3.

Defense Motion to Compel Discovery, 16 February 2012 (Appellate Exhibit VIII)

4.

Army Regulation 380-5, Paragraph 10-5, 29 September 2000
LEGAL AUTHORITY AND ARGUMENT
The Court should preclude the defense from raising or eliciting any discussion, reference,

or argument, to include the introduction of any documentary or testimonial evidence, relating to
actual harm or damage from pretrial motions related to the merits portion of trial and from the
merits portion of trial. Actual harm or damage is not relevant for the reasons proffered by
defense, to the charges facing the accused, or to any available defenses thereto. Even if relevant,
the probative value of actual harm or damage is substantially outweighed by the danger of unfair

2

21212

prejudice, confusion of the issues, or misleading the members, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence. See M.R.E. 403.
I.

ACTUAL HARM OR DAMAGE IS NOT RELEVANT FOR THE REASONS
PROFFERED BY DEFENSE.

Evidence is relevant if it has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence." Manual for Courts-Martial, United States, Mil. R. Evid. 401 (2008); see
also M.R.E. 401, analysis ("relevant evidence must involve a fact 'which is of consequence to
the determination of the action"').

·

The defense argued in its Motion to Compel Discovery that the damage assessments (the
proffered authority which confirms whether actual harm or damage transpired) are relevant for
two reasons. See Enclosure 3. First, the defense argued that the damage assessments ''would
undercut the testimony of each Original Classification Authorities for the charged documents."
See id. The defense appears to be conflating the issues of damage and potential impact on
national security. The two topics are distinct. Classification reviews are forward-thinking where
the "original classification authority determines [whether] the unauthorized disclosure of the
information reasonably could be expected to result in damage to national security." Exec. Order
No. 13,526 § 1.2(a)(4). In contrast, damage assessments are prepared in hindsight to determine
the actual impact, if any, caused by the illegal activity. See United States v. Lonetree, 31 M.J.
849, 868 (N-M C.M.R. 1990); see also Enclosure 4 (damage assessments "determine, given the
nature of the information and countermeasures, if any, that will be employed, what the probable
impact of the compromise will be on our national security"). Thus, the use of a damage
assessment (i.e., whether damage did occur) to impeach an OCA who prepared a classification
review (i.e., whether damage could occur) would be improper.
Second, the defense argued that the damage assessments were "at odds with the
classification review conducted by the OCA." See Enclosure 3. Such "non-justiciable"
questions, namely challenges to the classification of compromised information for which a
classification review exists, are not relevant on the merits. See United States v. Huet-Vaughn, 43
M.J. 105, 114 (C.A.A.F. 1995) (the legality of the decision to employ military forces in the
Persian Gulf was "irrelevant because it pertained to a non-justiciable political question").
Damage assessments may be relevant to impeach an OCA, but only if the OCA authored the
document and only with respect to the assessment, not the classification review. See R.C.M.
914.
Information may be originally classified only if done so by an original classification
authority. Exec. Order No. 13,526 § 1.1(a). Additionally, the information must be owned by,
produced by or for, or under the control of the United States Government and must fall within
one or more of the categories of following categories: military plans, weapons systems, or
operations; foreign government information; intelligence activities (including covert action),
intelligence sources or methods, or cryptology; foreign relations or foreign activities of the
United States, including confidential sources; scientific, technological, or economic matters
relating to the national security; United States Government programs for safeguarding nuclear
3

21213

materials or facilities; vulnerabilities or capabilities of systems, installations, infrastructures,
projects, plans, or protection services relating to the national security; or the development,
production, or use of weapons of mass destruction. See Exec. Order No. 13,526 §§ 1.1(a),
1.4(a)-(h). Finally, the OCA must determine "that the unauthorized disclosure of the information
reasonably could be expected to result in damage to the national security" and be able to identifY
or describe the expected damage. See Exec. Order No. 13,526 § 1.1(a) (emphasis added).
OCAs make their classification designations based on their authority under Executive
Order 13526, Classified National Security Information (signed by President Barack Obama on
29 December 2009) or for materials classified prior to 27 June 2010 on Executive Order 12958
(signed by President Clinton on 17 April 1995 and amended by Executive Order 13292 signed
by President Bush on 25 March 2003), as well as relevant classification guides.
The authority to classifY information is limited to (1) the President and the Vice
President; (2) agency heads and officials designated by the President; and (3) United States
Government officials delegated this authority pursuant to paragraph (c) of section 1.3(a). See
Exec. Order 13,526 § L3(a).
The President delegated the authority to make classification determinations to heads of
select agencies and it remains an Executive function. Department of Navy v. Egan, 484 U.S.
518, 527 (1988) (''The authority to protect [classified] information falls on the President as head
of the Executive Branch and as Commander in Chief"). The authority has been held in the
relevant agencies because they have the expertise to review the information and determine the
potential impact the release of that information would have on the United States as well as who
can have access to that information. Id.; see, e.g., CIA v. Sims, 471 U.S. 159, 176 (1985) ("[A]
court's decision whether an intelligence source will be harmed if his identity is revealed will
often require complex political, historical, and psychological judgments. . . . There is no reason
for a potential intelligence source, whose welfare and safety may be at stake, to have great
confidence in the ability of the judges to make those judgments correctly.").
Courts largely agree that classification determinations, as products of the Executive
Branch, should be presumed proper and not subject to great judicial scrutiny. See Haig v. Agee,
453 U.S. 280, 291 (1981) ("Matters intimately related to foreign policy and national security are
rarely proper subjects for judicial intervention "); see also Harisiades v. Shaughnessy, 342 U.S.
580 (1952) (such matters "are so exclusively entrusted to the political branches of government as
to be largely immune from judicial inquiry or interference"). The decision of owner of the
information must be given great deference. See Sims, 471 U.S. at 176 ("[t]he decisions of the
Director, who must of course be familiar with 'the whole picture,' as judges are not, are worthy
o�great deference given the magnitude of the national security interests and potential risks at
stake"). The Fourth Circuit provides such great deference to the classification determination that
courts largely do not question the determination. See United States v. Smith, 750 F.2d 1215,
1217 (4th Cir. 1984) ("[T]he government . . . may determine what information is classified. A
defendant cannot challenge this classification. A court cannot question it."), vacated and
remanded on other grounds, 780 F.2d 1102 (4th Cir. 1985); see also United States v. Rosen, 487
F. Supp. 2d 703, 717 (E.D. Va. 2007) ("Of course, classification decisions are for the Executive
Branch . . . .").
4

21214

Even assuming, arguendo, the classification determination is subject to judicial scrutiny,
the judicial review of this determination, much like that of a military judge's ruling, should be
based on what information was before the OCA at the time of making the determination. See
United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000) (a judge's ruling should be reviewed
based on what was available to the judge at the time of ruling). Any fact occurring after this
determination, to include whether any damage actually transpired, is irrelevant.
II.

ACTUAL HARM OR DAMAGE IS NOT RELEVANT TO THE CHARGES
FACING THE ACCUSED.

Actual harm or damage does not "make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence." M.R.E. 401 (emphasis added). In Huet-Vaughn, the accused was charged with
desertion with intent to avoid hazardous duty. See Huet-Vaughn, 43 M.J. at 114. The
Government filed a motion to preliminarily exclude any evidence relating to the accused's
motive for her misconduct. The trial court precluded the defense from presenting evidence
relating to the accused's motive. The Court of Appeals for the Armed Forces (CAAF) agreed
that such evidence was irrelevant because, inter alia, it did not ''tend to make her [mens rea]
more or less probable." Huet-Vaughn, 43 M.J. at 114 (the accused's motive was irrelevant to the
requisite intent of the crime, thus not relevant); see also United States v. Moylan, 417 F.2d 1002,
1004 (4th Cir. 1969) (motive not relevant to element of ''willful intent" in destroying board
records, ''but is rather an element proper for the judge's consideration in sentencing").
The law does not require the United States to prove that actual harm or damage occurred
in its case-in-chief, in light of the charges facing the accused. See Enclosure 1. Actual harm or
damage, including the absence thereof, is not an element, or relevant to any element, ofany
offense for which the accused is charged. See id. The extent of actual harm or damage that
occurred bears absolutely no relationship to whether the accused, in fact, committed the offenses.
Charge I (Article 104, UCMJ) requires that the United States prove, inter alia, that the
accused did "knowingly give intelligence to the enemy, through indirect means." Id. Actual
harm or damage, including the lack thereof, caused by the misconduct is neither an element nor
relevant to an element of this charge. The extent of harm or damage that transpired bears
absolutely no relationship to whether the accused, in fact, committed the offense.
Specification 1 of Charge II (Article 134, UCMJ) requires that the United States prove,
inter alia, that the accused did ''wrongfully and wantonly cause to be published on the internet
intelligence belonging to the United States government, having knowledge that intelligence
published on the internet is accessible to the enemy, 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." Id. Actual harm or damage, including the lack thereof, caused by the misconduct is
neither an element nor relevant to an element of this specification. The extent of harm or
damage that transpired bears absolutely no relationship to whether the accused, in fact,
committed the offenses.

5

21215

Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II (Article 134, UCMJ) require that
the United States prove, inter alia, that the accused had unauthorized possession of information
relating to the national defense and, with reason to believe such information could be used to the
injury of the United States or to the advantage of any foreign nation, did ''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.C. § 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." Id. Actual harm or damage, including the lack thereof: caused
by the misconduct is neither an element nor relevant to an element of these specifications. The
CAAF in Diaz supports this position. See United States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010).
In Diaz, the accused was charged with violating, inter alia, 18 U.S.C.§ 793(e). The
Government filed a motion in limine to exclude evidence which, on appeal, the defense argued
could have been offered to negate the alleged "heightened mens rea requirement" under 18
U.S.C.§ 793. The Court rejected the defense's argument because the language of the statute,
specifically that the accused "has reason to believe [that the information] could be used to the
injury of the United States" and do so with ''willfulness," did not arise "in the context of bad
intent, but in the conscious choice to communicate covered information." Id., at 132. This
reasoning supported the Fourth Circuit's decision in Morison that the government must only
prove ''that [the compromised information] was in fact potentially damaging." United States v.
Morison, 844 F.2d 1057, 1086 (4th Cir. 1988) (emphasis added). In sum, the CAAF adopted the
ruling in Morison that, under 18 U.S.C.§ 793(e), the United States need only prove, inter alia,
that the accused had reason to believe the information "could be used to the injury of the United
States[,]" or, put another way, that the information was "potentially damaging" - not that
damage actually transpired. See Diaz, 69 M.J. at 132.
Any actual harm or damage, the existence of which may only be confirmed through
witness testimony or other documentation, such as a damage assessment, is not relevant to
whether select documents were classified (a fact captured through testimony relating to a
classification review) and/or relate to national defense information. The extent of harm or
damage that transpired bears absolutely no relationship to whether the accused, in fact,
committed the offenses.
Specifications 4, 6, 8, 12, and 16 of Charge II (Article 134, UCMJ) require that the
United States prove, inter alia, that the accused did "steal, purloin, or knowingly convert to his
use or the use of another, a record or thing of value of the United States or of a department or
agency thereof...of a value of more than $1,000, in violation of 18 U.S.C. § 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." Id. Actual harm or damage, including the lack thereof: caused
by the misconduct is neither an element nor relevant to an element of these specifications. The
extent of harm or damage that transpired bears absolutely no relationship to whether the accused,
in fact, committed the offenses.
Specifications 13 and 14 of Charge II (Article 134, UCMJ) require that the United States
prove, inter alia, that the accused, "having knowingly exceeded authorized access on a Secret
Internet Protocol Router Network computer, and by means of such conduct having obtained
6

21216

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," did ''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 U.S.C.§ 1030(a)(l ),
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." Id. Actual harm or damage, including the lack
thereof: caused by the misconduct is neither an element nor relevant to an element of these
specifications. For the reasons set forth above, any actual harm or damage, the existence of
which may only be confirmed in a damage assessment, is not relevant to whether select
documents were classified (a fact captured through testimony relating to a classification review)
and/or relate to national defense information. The extent of harm or damage that transpired bears
absolutely no relationship to whether the accused, in fact, committed the offenses.
Specifications 1-5 of Charge III (Article 92, UCMJ) require that the United States prove,
inter alia, that the accused did "violate a lawful general regulation." Id. The violations include
"attempting to bypass network or information system security mechanisms," "adding
unauthorized software to a SIPRNET computer," "using information system in a manner other
than its intended purpose," and ''wrongfully storing classified information." Id. Actual harm or
damage, including the lack thereof: caused by the misconduct is neither an element nor relevant
to an element of these specifications. The extent of harm or damage that transpired bears
absolutely no relationship to whether the accused, in fact, committed the offenses.
Any discussion, reference, or argument, to include the introduction of any documentary
or testimonial evidence, relating to actual harm or damage is not relevant to pretrial motions
related to the merits portion of trial and to the merits portion of trial. The Court should preclude
any attempt by the defense to taint the proceeding with irrelevant issues during pretrial motions
focused on the merits and during the merits portion that are only relevant, if at all, on sentencing.
See R.C.M. 1001(b)(4); see also R.C.M. 1001(c).
III.

ACTUAL HARM OR DAMAGE IS NOT RELEVANT TO ANY DEFENSE
AVAILABLE TO THE ACCUSED.

Actual harm or damage does not "make the existence of any fact that is of consequence to
the determination ofthe action more probable or less probable than it would be without the
evidence." M.R.E. 401 (emphasis added). The extent of harm or damage that subsequently
transpired bears absolutely no relationship to any legal defense, or relevant to any conceivable
legal defense, available to the accused. See Huet-Vaughn, 43 M.J. at 115 (the accused's motive
was "in no way a defense to this [action] and therefore [] not relevant[,]" rejecting a necessity
defense and the so-called Nuremberg defense).

7

21217

IN THE ALTERNATIVE, THE FACTORS UNDER MRE 403 SUBSTANTIALLY
OUTWEIGH ANY PROBATIVE VALUE OF ACTUAL HARM OR DAMAGE ON
PRETRIAL MOTIONS RELATED TO THE MERITS PORTION OF TRIAL AND
ON THE MERITS PORTION OF TRIAL.

IV.

Even assuming, arguendo, actual harm or damage is relevant to the merits, such evidence
is substantially outweighed by those factors under MRE 403 and .!k!ry. See M.R.E. 403; see
also United States v. Berrv, 61 M.J. 91, 95 (C.A.A.F. 2005) (enumerating the factors under the
MRE 403 balancing test). The military judge may exclude otherwise relevant evidence, if "its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the members, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." M.R.E. 403.
A. Permitting the Defense to Raise Unsupported Arguments Relating to Whether Actual
Harm or Damage Transpired at Pretrial Motions Related to the Merits or on the Merits Will
Result in Prejudice to the Integrity of the Proceeding.
MRE 403 "addresses prejudice to the integrity of the trial process, not prejudice to a
particular party or witness." United States v. Collier, 67 M.J. 347, 354 (C.A.A.F. 2009). The
''term 'unfair prejudice' in the context of MRE 403 'speaks to the capacity of some concededly
relevant evidence to lure the fact finder into declaring guilt on a ground different from proof
specific to the offense charged."' United States v. Gaddis, 70 M.J. 248, 254 (C.A.A.F. 2011)
(citing Old Chief v. United States, 519 U.S. 172, 180 (1997) (analyzing the purpose behind
Federal Rule of Evidence 403, which is identical to MRE 403)); see also M.R.E. 403, analysis
(MRE 403 "is taken without change from the Federal Rule of Evidence"). Evidence of actual
harm or damage, including lack thereof: will create "an undue tendency to suggest decision on an
improper basis" and lure the fact finder into declaring guilt or innocence, irrespective of the
evidence supporting the charges. See Gaddis, 70 M.J. at 254 (citing Fed. R. Evid. 403, advisory
committee's notes). Further, any argument by the defense that no damage occurred is
inconsistent with what the United States has produced to the defense in discovery.
Permitting the Defense to Raise Unsupported Arguments Relating to Whether Actual
Harm or Damage Transpired at Pretrial Motions Related to the Merits or on the Merits Will
Result in Prejudice the United States.
R

If the Court permits the defense to raise or elicit unsupported arguments relating to actual
harm or damage during pretrial motions practice focused on the merits and on the merits, the
United States would be greatly prejudiced. See R.C.M. 906(b)(13), discussion (the purpose of a
motion to make a preliminary ruling on the admissibility of evidence "is to avoid the prejudice
which may result from bringing inadmissible matters to the attention of court members"). Actual
harm or damage resulting from the compromised information is likely classified information.
Assuming, arguendo, the defense continues its unsupported arguments that actual harm or
damage did not occur in open court, the United States is unable to rebut the defense's argument
with classified information without satisfying the requirements for a closed session under RCM
806, assuming the government entities who own the information authorize its use. See R.C.M.
806; see also United States v. Grunden, 2 M.J. 116 (C.M.A. 1977). Furthermore, this would be a
8

21218

new form of graymailing, whereby the government entities who own information relating to
actual harm or damage would be forced to approve the use of this classified information for the
sole purpose of rebutting the defense's argument, or otherwise have the prosecution be unable to
answer the defense's accusations in open or closed session by protecting the information from
disclosure. For these reasons, the Court should exclude actual harm or damage under MRE 403.
C. The Balancing Test under MRE 403 Confirms that the Court Should Exclude Actual
Harm or Damage from Pretrial Motions Related to the Merits and to the Merits.
MRE 403 requires the military judge to conduct a balancing test of: inter alia, the
strength of the proof of the fact, the probative weight of the evidence, the potential to present less
prejudicial evidence, the possible distraction of the fact-finder, the time needed to prove the fact,
and the presence of intervening circumstances. See Berry, 61 M.J. at 95. Assuming, arguendo,
the Court finds that actual harm or damage is relevant to any pretrial motions hearing focused on
the merits and on the merits, the balancing test confirms that the Court should exclude actual
harm or damage from any pretrial motions hearing focused on the merits and the merits.
The Court may consider the strength of the proof of fact in conducting its balancing test
under MRE 403. See�' 61 M.J. at 95. Damage assessments confirm whether, and to what
extent, actual harm or damage may have occurred. However, a damage assessment is a purely
hearsay statement or compilation of statements, thus likely inadmissible on its face. The strength
of the proof of fact is weak, absent additional evidence to overcome hearsay. Being a classified
document, the government entity that owns the information would be required to decide whether
to assert the privilege under MRE 505. If the privilege is sought, a classification review would
be required and the proceedings under MRE 505 would be initiated. Irrespective of whether the
privilege is sought or asserted, the document is likely inadmissible on its face as pure hearsay,
which may require the offering of additional evidence to overcome hearsay. Lastly, a closed
hearing under RCM 806 would be required to discuss whether actual harm or damage transpired.
See R.C.M. 806; see also Grunden, 2 M.J. at 116. Being a classified document with
admissibility concerns, the time needed to prove whether actual harril or damage transpired
during any pretrial motions hearing focused on the merits and during the merits may stalemate
the proceeding.
The Court should also consider whether the information would operate to distract the fact
fmder, rather than assist in the decision-making process. See�' 61 M.J. at 95. Whether the
'
accused s misconduct resulted in actual harm or damage would greatly distract the fact-finder
from determining whether the accused committed the alleged offenses and, instead, lure the
panel members to make a decision based purely on damage, not misconduct. Actual harm or
damage may be a legitimate consideration of the panel on sentencing, but not on the merits.

9

21219

CONCLUSION

The United States respectfully requests that the Court preclude the defense from raising
or eliciting any discussion, reference, or argument, to include the introduction of any
documentary or testimonial evidence, relating to actual harm or damage from pretrial motions
related to the merits portion of trial and from the merits portion of trial.

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel
I certify that I served or caused to be served a true copy of the above on
Coombs, Civilian Defense Counsel, via electronic mail, on 29 March 2012.

� ·\�-

]. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel

10

Mr.

David E.

21220
3
i
i



Appellate Exhibit 64
Enclosure 1
is the charge sheet



Appellate Exhibit 64
Enclosure 2
has been entered into the

record as
Appellate Exhibit 36

Appellate Exhibit 64
Enclosure 3
has been entered into the
record as

Appellate Exhibit 8

21223

UNITEDSTATESOF AMERICA

Prosecution Motion

V.

for Appropriate Relief to Preclude
Actual Harm or Damage from the
Pretrial Motions Practice and
the Merits Portion of Trial

Manning, Bradley E.
PFC, U S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Enclosure #4
29 March 2012

APPELLATE EXHIBIT.
Page___orPagi(si

21224

(1) What is the date and identity of the article disclosing classified information7
(2) What specific statements in the article are considered classified and whether the data was properly classified7
(3) If the data came from a specific document, what is the source document's origin, and the identity of the
individual responsible for the security of the classified information disclosed?
(4) What is the extent of dissemination of the data7
(5) Has the infonnation been previously officially released?
(6) Was prepublication clearance sought from proper authorities?
(7) Have portions of, or background data on, the material, been published officially or in the open press from which
an educated speculation on the consolidated data is derived?
(8) Can the data be declassified or otherwise made available for prosecution and, if so, what is the identity of the
person competent to testify concerning its classification?
(9) Had declassification been decided upon before the data was published?
(10) What is the effect the disclosure of the classified data would have on the national security?
(11) Is the disclosed classified data accurate?
/ If at any time, during the preliminary inquiry, it appears that deliberate compromise of classified information may
have occurred, the situation will be immediately reported to the chain of command and supporting counterintelligence
unit. Apparent violations of other criminal law will be reported to the supporting criminal investigative activity.
Coordination with the command's legal counsel is recommended whenever it seems likely that administrative or other
sanctions may be taken against someone because of the incident.
10-4. Reporting results of the preliminary inquiry

a. If the conclusion of the preliminary inquiry is as stated in paragraph 10-3d(2) or (4), (compromise could have
occurred, or compromise did occur and damage to the national security can result) the official initiating the preliminary
inquiry will immediately notify the originator of the information or material involved. If the originator was not the
original classification authority, the OCA will also be immediately notified (see paragraph 10-5a, below). If the
originator cannot be determined, the command's MACOM will be contacted for guidance. The MACOM will contact
DAMl-CH, for those cases in which the MACOM cannot direct the command to the appropriate activity. Notification
of the originator and original classification authority will not be delayed pending completion of any additional inquiry
or resolution of other related issues.
b. If the conclusion of the preliminary inquiry is as stated in paragraph 10-3d(2) or (4), the command will report the
matter through command channels to its MACOM, or to the Administrative Assistant to the Secretary of the Army
(AASA) for offices and activities under HQDA. The MACOM or the AASA will review the report for completeness
and adequacy of investigation and for the appropriateness of the corrective action/sanctions taken. Such reports will be
filed and retained for a period no less than two years and are subject to HQDA or other appropriate agency oversight.
MACOMs and the AASA will establish policy and procedures concerning whether or not there will be a forwarding of
the reports of preliminary inquiry when the conclusion is other than stated in paragraph 10-3d(2) or (4). Reports of
preliminary inquiry will be included in the Command management control review and oversight. If analysis shows that
defects in the procedures and requirements of this regulation, or another Anny regulation or DOD directive, contributed
to the incident, MACOM, and the AASA officials will so advise OAMl-CH. DAMl-CH officials will evaluate the
incident and report the conclusions, where deemed warranted, to DOD officials, if the problem concems a DOD
requirement. Report defects in the procedures and requirements regarding Anny or other DOD SAPs directives,
regulations, instructions, or other regulatory guidance through command channels to DAMI-CH (SAP) and
DACS-DMP. If the problem concems a DOD SAPs Directive, Instruction, or other regulatory guidance, HQDA will
report to the Director, Special Programs, ODUSD(P).
c. If the conclusion of the preliminary inquiry is as stated in paragraph 10-3d(2) or (4), and foreign govemment
information is involved, the incident will be reported through command channels and DAMI-CH to the Director of
International Security Programs, ODUSD(P), who will notify the foreign government.
d. If the preliminary inquiry concludes that violations of the provisions of this regulation or criminal statutes did
occur, see Chapter 1, section VI, for other reporting requirements that may apply.
e. Commands will forward, through command channels to DAMI-CH, a copy or summary of the preliminary
inquiry or investigation conducted, as a result of the unauthorized disclosure of classified information to the public
media. An example of a preliminary report format can be found at figure 10-1, of this Chapter. DAMI-CH will
forward such preliminary inquiry reports to the Director, Counterintelligence and Security Programs, 0ASD(C3I).
SAPs leak inquiries or investigations will be provided directly to DAMl-CH (SAP) and DACS-DMP, for forwarding
to the Director, Special Programs, 0DUSD(P)SP (see appendix 1 of this regulation and AR 380-381 for more details).
10-5. Reevaluation and damage assessment

a. When notified of possible or actual compromise, the holder of the information or material will ensure that the
original classification authority, responsible for each item of the infonnation, is notified of the incident. The OCA will
verify and reevaluate the classification of the infonnation and will conduct a damage assessment.

106

AR 380-5 • 29 September 2000

21225

^. Whenclassifiedinformationunderthecontrolofmorethanonecominandor agency is involved,theaffected
activities are responsible for coordinating their efforts in damage assessment and reevaluation.When participation by
foreign governments or international organizations in damage assessment and reevaluation is required, contacts will be
made through established intergovernmental liaison channels.
^. Thefirst step in thereevaluationanddamageassessment process isfortheOCAto verify theactual, current
classification of the infonnation involved. The OCA determines whether the information currently is classified and the
level and duration of classification that applies.
^. The second stepistoreevaluate the classificationoftheinformation to see whether the classification shouldbe
continued or changed. This review will consider the following possibilities^
(1) The information has lost all or some of its sensitivity since it was classified, and will be downgraded or
declassified. In rare cases, it might also be discovered that the information has gained in sensitivity and must be
upgraded.
(2) The information has been so compromised by this incident that attempting to protect it further is unrealistic, or
inadvisable, and it is be declassified.
(3) The information must continue to be classified at the same level.
^. The third step is to determine whether there are countermeasures that can be taken to minimize or eliminate the
damage to the national security that could result from the compromise. These countermeasures might include changing
plans or systemdesignfeatures, revising operating procedures,providingincreasedprotectiontorelated information,
through classification or upgrading, etc. The OCA performing this function is responsible for initiating or recommends
ing the appropriate countermeasures.
^ The final step is performing the damage assessment.TheOCAwill determine, given the nature of the information
and the countermeasures, if any,that will be employed,what the probable impact of the compromise will be onour
national security. In contrast to thefirstthreesteps in thisprocess, whichmust be completedquickly, thisstep is
sometimes a long term, multi^isciplinary analysis of the adverse effects of the compromise on systems, plans,
operations, and^or intelligence.
10-^. Oehriefings in casesof unauthorised access
Incases whereapersonhashadunauthorizedaccesstoclassifiedinformation,it is advisable to discuss the situation
with the individual to enhance the probability that they will properly protect it. Whether suchadiscussion,commonly
calleda^^debriefing,"is held,is to be decided by the commander, security manager,or other designated official.This
decision must be based on the circumstances of the incident,what is known about the person or persons involved, and
the nature of the classified infonnation. The following general guidelines apply^
^. Ifthe unauthorized access was by a person with the appropriate security clearance but no need to^know,
debriefing is usually unnecessary.Oebriefing is required if the individual is not aware the information is classified and
that it needs protection. Inform the person that the information is classified andit requires protection. In these cases,
the signing of a debriefing statement (see subparagraph e, below) is usually not necessary.
^. If the unauthorized access was by t.^.S. govemment personnel, civilian or military, without the appropriate
security clearance, debriefing will be accomphshed. Personnel will be advised oftheir responsibility to prevent fi^rther
dissemination of the information and of the administrative sanctions and criminal penalties which might follow if they
fail to do so. The debriefing official will make sure the individual understands what classified information is and why
its protection is important.
If theperson whohadunauthorizedaccessis anemployeeof a clearedcontractor participating in the national
industrial security program, the same guidelines apply as for t^.S. Covemment personnel. Coordination with the
employing firm'sfacility security officer^manager is recoinmendedunless such coordination would place theinforma^
lion at increased risk.
^. If the person involved is neither t.^.S.government personnel,nor an employee ofacleared contractor, the decision
will be made by the cominander.The key question to be decided is whether the debriefing will have any likely positive
effect on the person'sabilityand^or willingness to protect the information.Asageneral rule,it is ot^en more effective
in thelong run to explain thatamistake occurred and that the person had unauthorised access to certain sensitivet^.S.
govemment information. Also, that such access should not have happened and that the I^.S. Army needs the individual
to understand that the information must be protected and never further discussed or otherwise revealed to other
unauthorized personnel.
^. It isusefultohavethepersonbeingdebriefed signastatement acknowledging the debriefing and their under^
standing of its contents. This may have a significant psychological effect in emphasizing the seriousness of the
situation. Ifthe person refuses to sign a debriefing statement, when asked, this fact, and their stated reasons for
refusing, will be made a matter of record in the preliminary inquiry. The nearest counterintelligence unit will
immediately be notified so thata trainedCl investigator canexplain the reason for thedebriefingandadvise the
individual thatarefi^sal to sign could indicate an unwillingness to protect classified information and could place their
clearance, if held at the time, in jeopardy.

AR 380-5 • 29 September 2000

107

21226

From:
To:
Cc:

Bcc:

Subject:
Date:
Attachments:

Fein. Ashden MAJ USA JFHO-NCR/MDW SJA
Lind. Denise R COL USARMY (US)
PflYitI Coombs; KemKeS, Matthew J m USARMY (US); Bouchard. Paul R CPr USARMYfUSV. Santiago. Melissa
S CW2 USARMY fUSI: Morrow I I I . JoDean. CPT USA JFHO-NCR/MDW SJA: Overaaard. Anael M. CPT USA
: Whvte. Jeffrey H. CPT USA JFHO-NCR/MDW SJA: Ford. Arthur D. CW2 USA JFHOV. Williams. Patricia CIV JFHO-NCR/MDW SJA
Bradlev. Princeton L. SGT USA JFHO-NCR/MDW SJA: Feito. Beatriz SGT USA JFHO- NCR/MDW SJA: Parra. Jairo
A. WOl USA JFHO-NCR/MDW SJA: Wavbriaht. Daniel W. SGT USA JFHO-NCR/MDW SJA; Haberland. John CPT
USA Reaimental Judae Advocate
Government Motion for Appropriate Relief
Thursday, March 29, 2012 8:42:00 PM
120329-Motion for Appropriate Relief fEnch.pdf
120329-Motion for Appropriate Relief.pdf

Ma'am,
Attached is the government's motion for appropriate relief to preclude actual harm or damage from the
pretrial motions practice and the merits portion of trial.
v/r
MAJ Fein

21227

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)
)

DEFENSE RESPONSE
TO PROSECUTION MOTION
TO PRECLUDE REFERENCE TO
ACTUAL HARM OR DAMAGE

DATED: 12 April 2012

RELIEF SOUGHT
1. The Defense requests that this Court deny the Government’s motion in its entirety for the
reasons identified herein.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. As the moving party, the Government has the burden of persuasion. R.C.M. 905(c)(2). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1).
FACTS
3. PFC Manning is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight specifications of communicating
classified information, five specifications of stealing or knowingly converting Government
property, and two specifications of knowingly exceeding authorized access to a Government
computer, in violation of Articles 92, 104, and 134, UCMJ, 10 U.S.C. §§ 892, 904, 934 (2010).
4. The original charges were preferred on 5 July 2010. Those charges were dismissed by the
convening authority on 18 March 2011. The current charges were preferred on 1 March 2011.
On 16 December through 22 December 2011, these charges were investigated by an Article 32
Investigating Officer. The charges were subsequently referred without special instructions to a
general court-martial on 3 February 2012.

21228

LEGAL AUTHORITY AND ARGUMENT
I.

The Government’s Request is Premature, Internally Incoherent and Overbroad
a)

The Government’s Motion is Premature

5. The Government would seek to preclude the Defense from referencing at trial or in pretrial
motions practice the content of damage assessments that the Defense has not yet seen and which
the Government has vigorously attempted to prevent the Defense from seeing. Such a motion is
premature since, if the damage assessments are not favorable for the Defense, the Defense will
likely not seek to reference them during the merits or the sentencing portion of the trial. As such,
the Court would be deciding a completely moot point. See, e.g. United States v. West, 2011 WL
856600, at * 7(N.D. Ill. Mar. 9, 2011) (court denied as premature the government’s motion to
preclude evidence or argument regarding a defense of duress where the motion was filed before
completion of the government’s document production). Although the Defense raised the concern
with the Court that the Government’s motion was premature, the Court has directed that the
Defense respond substantively to the Government’s position.1
b)

The Government’s Motion is Internally Incoherent

6. It is difficult to respond to the Government’s motion, as the argument is internally
inconsistent. In order to respond, the Defense must make the assumption that the damage reports
are favorable to the Defense, in that they show that little to no damage was caused by the alleged
leaks. However, the Government continues to imply in its motion that the damage reports will
show that the leaks did cause damage to national security. For instance:
i)

The Government refers repeatedly to the Defense’s “unsupported arguments related to
whether actual harm or damage transpired.” Prosecution Motion for Appropriate
Relief to Preclude Actual Harm or Damage from the Pretrial Motions Practice and the
Merits Portion of Trial, p. 8 (emphasis added)[hereinafter “Government Motion”].

ii)

The Government states that “any argument by the defense that no damage occurred is
inconsistent with what the United States has produced to the defense in discovery.”2
Id.

iii)

The Government states that if “the defense continues its unsupported arguments that
actual harm or damage did not occur in open court” this would result in a new form of
“graymail” where the Government would be forced to rebut the Defense’s allegations
with evidence of actual harm. Government Motion, p. 8-9.

7. Clearly, the Government’s statements suggest that the damage assessments will prove that the
alleged leaks caused harm or damage to the United States. If this is truly the case, why would
1

Given that the Defense has not seen the damage assessments, it reserves the right, upon the Government providing
discovery, to supplement its submissions in this Response.
2
It is ironic to think that the Government is using its own discovery violations as a means to preclude the Defense
from raising the issue of damage assessments.

2

21229

the Defense seek to introduce evidence of damage assessments that show that the leaks did, in
fact, cause damage to national security? By extension, why would the Government seek to
preclude the Defense from doing something it would not do?
8. In short, the only way that the Government’s motion makes any sense is to assume that the
damage assessments reveal that the alleged leaks caused no harm to the United States. The
Government should not be permitted to continue its practice of “smoke and mirrors” in
suggesting that the damage assessments say otherwise. If they say otherwise (i.e. the alleged
leaks caused harm), there would be absolutely no reason for this motion to preclude reference to
them.
c)

The Government’s Motion is Overbroad

9. The Government requests that the Court preclude the Defense from “raising or eliciting any
discussion, reference, or argument, to include the introduction of any documentary or testimonial
evidence, related to actual harm or damage from pretrial motions related to the merits portion of
the trial and from the merits portion of the trial.” Government Motion, p. 1. It seems that the
Government is not simply seeking to preclude the Defense from arguing that the alleged leaks
did not cause harm, but also to preclude the Defense from referencing any “documentary or
testimonial evidence[] related to actual harm or damage.” (emphasis added).3 Id.
10. The Defense reads this to mean that the Government would seek to prevent the Defense
from introducing anything that might be contained in a damage assessment from the merits
portion of trial, because the damage assessment is documentary evidence “related to actual harm
or damage.” So if, for instance, a damage assessment provided reasons why no harm was done
to the United States from the alleged leaks, the Defense would not be permitted to use that
information in its case in chief. However, the reasons why the released information did not
cause harm could bear on whether the information was of the type that could reasonably be
expected to cause harm, as outlined in detail below.
11. The Government fails to draw a distinction between the Defense referencing the fact that the
damage assessments concluded the leaks caused no harm, and the Defense referencing specific
information contained in the damage assessments. The two are different things, but the
Government would seek to lump them together. In either event, for the reasons discussed below,
the Government’s motion should be denied in its entirety because the evidence is relevant and
not outweighed by the danger of unfair prejudice under M.R.E. 403.
II.

The Court Should Not Preclude the Defense From Referencing a Lack of Actual
Harm or the Content of the Damage Assessments

3

The Government also seeks to preclude the Defense from raising or eliciting any discussion, reference, or
argument related to actual harm from pretrial motions related to the merits portion of trial. The Defense believes
that this would include motions related to discovery or production as well as the current Defense Motion to Dismiss
All Charges with Prejudice. Clearly, requesting the Court to order the Defense from referencing actual harm in a
motion to compel discovery of the damage assessments, for instance, is ludicrous.

3

21230

a) The Absence of Harm Goes to An Element of Three Offenses
12. The Government repeatedly argues that “[t]he extent of the harm or damage that occurred
bears absolutely no relationship to whether the accused, in fact, committed the offenses.” See
e.g. Government Motion, p. 5. Notably, the Government does not state that the absence of harm
is not relevant to the charged offenses; rather, it states that “the extent of the harm or damage” is
not relevant to any of the charges. This is plainly wrong on its face. If the Government chooses
to show that the alleged leaks caused harm, this would be compelling proof that the leaked
information could cause damage to the United States. In other words, if the Government could
prove that the alleged leaks did damage to the United States, it would seem to follow that the
leaks could cause damage to the United States. The Government’s failure to understand this
point—and box itself into a position where it maintains harm is not relevant to the charges—is
baffling.
13. It does not follow, of course, that if the alleged leaks did not cause damage, this definitively
proves that they could not cause damage. However, the absence of harm is probative of whether
the information leaked was of the type that the accused reasonably believed could cause harm.
More specifically, the lack of harm from the leaks is relevant to the 18 U.S.C. §793 and the 18
U.S.C. §1030 offenses and whether the accused had reason to know that the information released
could be used to the injury of the United States or to the advantage of a foreign nation. See
Charge Sheet. Further, the lack of harm from the leaks is relevant to whether the accused acted
“wantonly,” an element of the Article 134 offense. Id.
14. The 18 U.S.C. §793 and the 18 U.S.C. §1030 offenses require that the Government prove
that “the accused had reason to believe” that the “information could be used to the injury of the
United States or the advantage of any foreign nation.” Id. The Government seems to think that
an analysis of whether the information “could” be used to the injury of the United States or the
advantage of any foreign nation takes place in a vacuum. The Government conveniently
overlooks that the offenses require that the Government prove the accused had “reason to
believe” the information “could be used to the injury of the United States or the advantage of a
foreign nation.” As such, this is not a merely hypothetical inquiry into the word “could.”
Rather, the offenses require the Government to show that the accused had “reason to believe”
that the information could be used to the injury of the United States. See United States v. Truong
Dinh Hung, 629 F.2d 908, 919 (4th Cir. 1980) (approving jury instruction that “reason to
believe” meant that a defendant must be shown to have known facts from which he concluded or
reasonably should have concluded that the information could be used for the prohibited
purposes). The Article 134 involves a similar inquiry: whether PFC Manning acted “wantonly”
(i.e. highly recklessly) in causing the charged information to the published on the internet.
15. The Defense is entitled to argue that, by virtue of his expertise and training, PFC Manning
knew which documents and information could be used to the injury of the United States or to the
advantage of any foreign nation. PFC Manning had access to a great deal of very sensitive
information that, if disclosed, could have caused damage to the United States. By selecting the
information that he allegedly did, PFC Manning deliberately chose information that could not
cause damage to the United States. The reasonableness of his belief that the information could
not cause damage is buttressed by the damage assessments which (presumably) say that the leaks

4

21231

did not cause damage to the United States. In short, the Defense submits that the damage
assessments confirm that PFC Manning did not have “reason to believe” that the information
could cause damage to the United States or be used to the advantage of a foreign nation. Further,
the lack of damage from the leaks supports the view that PFC Manning did not act “wantonly,”
an element of the Article 134 offense.
16. The Government believes that the classification level of the documents themselves is
conclusive (or virtually conclusive) of whether the information could cause damage. The
Government’s argument in this respect—that “[c]ourts largely agree that classification
determinations, as products of the Executive Branch, should be presumed proper and not subject
to great judicial scrutiny”—is misleading. See Government Motion at p. 4. The Government
cites small excerpts from cases which seem to suggest that courts must defer to classification
rulings, presumably in the context of deciding whether classified information could cause
damage.4 These excerpts are misleading in that none of them deal with the issue at hand, i.e.
whether classification decisions are entitled to great deference in determining whether the
information could cause damage. In United States v. Rosen, 487 F. Supp. 2d 703, 717 (E.D. Va.
2007), the court was deciding whether it should close the trial under a novel system proposed by
the government owing to the classified information involved.5 United States v. Smith, 750 F.2d
1215 (4th Cir. 1984) dealt with the admissibility of classified evidence in a proceeding. And CIA
v. Sims, 471 U.S. 159 (1985) involved the powers of the Director of the CIA to withhold
intelligence information from a Freedom of Information Act request. Harisiades v.
Shaughnessy, 342 U.S. 580 (1981) does not even deal with classified documents or information.
Instead, it deals with the constitutionality of the Alien Registration Act. The Supreme Court in
that case stated:
It is pertinent to observe that any policy toward aliens is vitally and intricately
interwoven with contemporaneous policies in regard to the conduct of foreign
relations, the war power, and the maintenance of a republican form of
government. Such matters are so exclusively entrusted to the political branches of
government as to be largely immune from judicial inquiry or interference.
Id. at 588-589. Thus, the Supreme Court was not talking about classification determinations in
reference to “such matters” as the Government’s citation would seem to suggest. See
4

Otherwise, it is not clear what the point of this discussion is.
In that case, the Court refused to adopt the government’s plan stating:
Here, the government has not met its burden; instead, it has done no more than to invoke “national
security” broadly and in a conclusory fashion, as to all the classified information in the case. Of
course, classification decisions are for the Executive Branch, and the information's classified
status must inform an assessment of the government’s asserted interests under Press-Enterprise.
But ultimately, trial judges must make their own judgment about whether the government’s
asserted interest in partially closing the trial is compelling or overriding. As noted, a generalized
assertion of “national security interests,” whether by virtue of the information’s classified status or
upon representation of counsel, is not alone sufficient to overcome the presumption in favor of
open trials. Here, the government has not proffered any evidence about danger to national security
from airing the evidence publicly, let alone an item-by-item description of the harm to national
security that will result from disclosure at trial of each specific piece of information as to which
closure is sought, as required by Press-Enterprise.
Id.
5

5

21232

Government Motion at p. 4. Rather, it was talking about the United States’ policy toward aliens.
Similarly, the Haig v. Agee, 453 U.S. 280 (1981) case deals with the U.S.’s power to revoke a
passport, not with whether courts should defer to classification determinations.
17. As is clear, the Government does not provide support for its proposition that classification
decisions are worthy of great deference as it concerns the conclusion that classified information
“could” cause harm. This is because military (and other) case law clearly establishes that the
classification of a document is only probative, and not determinative, of the issue of whether
information could cause harm. In United States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010), C.A.A.F.
stated:
[C]lassification alone does not satisfy the mens rea requirement of §793(e).
Surely classification may demonstrate that an accused has reason to believe that
information relates to national defense and could cause harm to the United States.
However, not all information that is contained on a classified or closed computer
system pertains to national defense. Likewise not all information that is marked as
classified, in part or in whole, may in fact meet the criteria for classification.
Conversely, information that is not so marked may meet the standards for
classification and protection. This is evident enough with respect to information
received through oral means or information the recipient should have reason to
believe warrants protection.
Id. at 133. Under Diaz, the Government cannot satisfy its burden of showing that the documents
could cause damage merely by pointing to their classification.6
18. The Government cites United States v. Morison, 844 F.2d 1057 (4th Cir. 1988) for the
proposition that “the government must only prove ‘that [the compromised information] was in
fact potentially damaging.” (Government emphasis). The Government has failed to cite the
more important part of the Morison holding:
Though the point is to me a close one, I agree that the limiting instruction which
required proof that the information leaked was either “potentially damaging to the
United States or might be useful to an enemy” sufficiently remedied the facial
vice. Without such a limitation on the statute’s apparent reach, leaks of
information which, though undoubtedly “related to defense” in some marginal
way, threaten only embarrassment to the official guardians of government
“defense” secrets, could lead to criminal convictions. Such a limitation is
therefore necessary to define the very line at which I believe the first amendment
precludes criminal prosecution, because of the interests rightly recognized in
Judge Wilkinson’s concurring opinion. This means, as I assume we reaffirm
today, that notwithstanding information may have been classified, the government
6

The Government cites Diaz for a completely unrelated proposition that is not at issue here. See Government
Motion, p. 6. The motion to preclude evidence in Diaz was related to intent, not relevance. In Diaz, the military
judge excluded evidence that the Defense contended would satisfy the heightened mens rea requirement in 18
U.S.C. §793(e). Id. at 137. Given that the Court concluded there was no heightened mens rea requirement for 18
U.S.C §793(e), the exclusion of the evidence was proper. This ruling does not speak at all to whether it is
appropriate to exclude reference to actual harm in this case.

6

21233

must still be required to prove that it was in fact “potentially damaging ... or
useful,” i.e., that the fact of classification is merely probative, not conclusive, on
that issue, though it must be conclusive on the question of authority to possess or
receive the information. This must be so to avoid converting the Espionage Act
into the simple Government Secrets Act which Congress has refused to enact.
Id. at 1086. As both Diaz and Morison demonstrate, the Government does not get a “free pass”
on establishing whether information could cause damage by simply relying on the fact of
classification itself. Under the 18 U.S.C. §793 and the 18 U.S.C. §1030 offenses, the
Government must prove that the information could cause damage—and more specifically, that
the accused had reason to know that the information could cause damage. The Defense should
be entitled to rebut the allegation by showing that the accused did not have reason to believe that
the information could cause damage and testing the reasonableness of that belief against the
actual damage caused. Moreover, under the Article 134 offense, the Defense should be entitled
to argue that PFC Manning did not “wantonly” cause intelligence information to be published on
the internet . The lack of actual harm supports the view that any alleged disclosure of
information was not wanton.
b) The Absence of Harm is Relevant Impeachment Evidence
19. In addition to going toward a key element of three separate offenses, the Defense maintains
that the absence of damage is relevant for the impeachment of Government witnesses who claim
that the leaks “could” cause damage. The Government, however, believes that the use of a
damage assessment to impeach an Original Classification Authority (OCA) who prepared a
classification review would be improper. Government Motion, p. 3. The Government provides
no justification for its position. Why is it “improper” to use actual ex post knowledge to
challenge the reasonableness or appropriateness of the ex ante classification decision which the
Government relies on to show the documents could cause damage? As Diaz states, the
classification level of the documents themselves is not determinative of whether the information
“could” cause damage (or whether the accused had reason to believe they could cause damage).
As such, the Defense should be able to probe the basis of a Government witness’ testimony that
the information could cause damage by using ex post damage assessments. See United States v.
Israel, 60 M.J. 485, 486 (C.A.A.F. 2005) (“A defendant’s right under the Sixth Amendment to
cross-examine witnesses is violated if the military judge precludes a defendant from exploring an
entire relevant area of cross-examination.”) (citing United States v. Gray, 40 M.J. 77, 81 (C.M.A.
1994)).
20. For instance, suppose that a damage assessment revealed that Afghani sources were not
compromised in the alleged leaks; the reason is that the sources were referred to in the leaked
SIGACTS by initials and not name. The Defense should be able to use this information to
question the Government witness about whether, when conducting the original classification
review, he or she knew that the sources were referred to by initials. This could then form the
basis for impeaching the witness’ testimony that the leaks “could” cause damage. While the
Government would neatly have the Court separate the OCA classification reviews from the OCA

7

21234

damage assessments, the analysis is not that tidy. Evidence from the latter is directly relevant to
the former and can be used to impeach a witness’ credibility.
21. Moreover, the Government notes that the damage assessments look at the damage to
national security given based, in part, on the nature of the information released. Government
Motion at p. 2 (emphasis added). If the damage assessments conclude that the nature of the
information is such that it would not cause harm, then the Defense should be able to use that
information to challenge the OCAs’ original determination that the information was of such a
nature that it could cause harm.
IV.

Reference to the Absence of Harm from the Alleged Leaks Should Not be Excluded
Under M.R.E. 403

22. The Government believes that permitting the Defense to raise issues related to actual harm
from the leaks (or the absence thereof) would: a) result in prejudice to the integrity of the
proceeding; b) result in prejudice to the United States; c) fail the balancing test under M.R.E.
403.7
23. The Government makes no legitimate proffer that reference to actual harm will undermine
the integrity of the trial process or cause prejudice to the Government. Indeed, the cases cited by
the Government in this respect speak to prejudice to the accused—not the integrity of the process
or prejudice to the United States. See, e.g., United States v. Collier, 67 M.J. 347, 354 (C.A.A.F
2009) (“[T]he term ‘unfair prejudice’ in the context of M.R.E. 403 ‘speaks to the capacity of
some concededly relevant evidence to lure the fact finder into declaring guilt on a ground
different from proof specific to the offense charged.’”)(emphasis added) (cited in Government
Motion, p. 8).
24. The Government’s argument seems to be that it will suffer great prejudice for the following
reason: if the Defense references the fact that the leaks did not cause damage, the Government
would be forced to rebut that evidence with its own evidence that the leaks did cause damage.
Since the information would be classified, this would be a new form of graymailing. The
government entities who own information related to actual harm or damage would be forced to
approve the use of this classified information for the sole purpose of rebutting the defense’s
argument.
25. The Government’s argument suffers from many weaknesses. First, the Defense plans on
introducing any favorable damage assessments on sentencing; thus, the Government would be in
a position where—if it wanted to refute the Defense’s argument—it would already have had to
secure the relevant approvals. Second, the Defense is not able to reference classified information
contained in the damage assessment in “open court” as the Government suggests. See
Government Motion, p. 8. So all of the proceedings where the Defense or the Government
referenced classified information from the damage assessments would need to be in closed
proceedings in any event. Third, the Government’s “graymailing” theory is ludicrous. Why
7

Again, the Defense would point out that it is virtually impossible to conduct a balancing test for information that
the Court and the Defense has not yet seen.

8

21235

would the Defense “graymail” the Government into disclosing documents or information that
hurt the Defense?
26. The Government then cites miscellaneous other reasons why the Court should not allow the
Defense to reference the damage assessments under M.R.E. 403: the statements are inadmissible
hearsay, the documents are classified, closed sessions would be required to discuss the contents
of the damage assessments. See Government Motion, p. 9. None of these are reasons for
precluding the Defense from referencing the lack of damage caused by the leaks. The Defense
would challenge the fact that these documents are inadmissible hearsay (and certainly the issue
cannot be resolved as part of this motion). Further, thousands of documents in this case are
classified and require approvals and closed sessions; the damage assessments are no different.
27. To the extent that there are any concerns about confusing the issues, the Court has the
inherent power to control its own process. If, at the time the Defense references the damage
assessment, the Court believes that the line of questioning is complicated or too attenuated, it can
make the decision not to allow the Defense to continue. Moreover, if there is any confusion on
this issue in the mind of the panel members, the Court can issue appropriate instructions. In
short, there are simple remedies available to the Court that are far short of outright precluding the
Defense from “raising or eliciting any discussion, reference, or argument, to include the
introduction of any documentary or testimonial evidence, related to actual harm or damage from
pretrial motions related to the merits portion of trial and from the merits portion of trial.”
Government Motion, p. 1.
28. The court in United States v. Drake, in response to a motion by the prosecution to preclude
the defense in that case from referencing certain evidence, expressed an unwillingness to
foreclose a potential line of argument, especially given that the court had the inherent power to
control the courtroom. The court stated in this respect:
THE COURT: -- but my point is that, to preclude them from going down that
path, I think, essentially prevents them from presenting a defense, that we can
control the matter of whether or not there is reference to necessity or justification,
and I’m fairly confident I’ll be able to control the courtroom to do that. It’s just a
matter of where else we go with this motion, and it seems to me they’re certainly
entitled to get into this.

THE COURT: As I interpret the Government’s motion, or as I intend to interpret
it, it doesn’t mean that that evidence is -- although the Government seems very
concerned with it amounting to a higher calling, necessity, or justification
defense, I’m fairly confident that I can keep this case on track to correct you if
you happen to make an inadvertent mistake in that regard, but you’re certainly
free to have at that in terms of the intent element, and that’s how I see it.
Transcript of Record at M-100, M-103, United States v. Drake, No. RDB-10-181 (D. Md. Mar.
31, 2011) (emphasis added). The court’s response in Drake was an eminently sensible one,

9

21236

which recognized that there are reasonable alternatives short of outright preclusion available to
address any concerns of prejudice or confusion.
CONCLUSION
29. For the reasons outlined herein, the Defense requests that this Court deny the Government’s
motion in its entirety. In the alternative, the Defense requests that this Court defer ruling on the
motion until all relevant evidence has been produced. See United States v. Swenson, 51 M.J.
522, 526 (A.F. Ct. Crim. App. 1999) (“By deferring his ruling, the military judge often can better
assess the relevance and necessity of the evidence.”).
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

10

21237

11 April 2012
MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

l. I hereby certify that I have reviewed the following Defense motions for the presence of
classi?ed information:

a) Defense Response Motion to Prosecution?s Motion to Preclude Reference to Actual Harm
or Damage and
b) Defense Request for Partial Reconsideration of Discovery Ruling;

I do not believe that either of these motions contains classi?ed information or information that a
reasonable person could believe to be classified.

2. The point of contact for this memorandum is the undersigned at -

7 .
ix/1
CHARLES J. GANIEL
Command, SSO

HQ AT EC

21238

Qt:
on the front lines for social justice

March 21, 2012

Via Federal Express

Zolonel Denise R. Lind

Zhief Judge, 1st Judicial Circuit

Army Trial Judiciary

Army Military District of Washington

3


Re: Access to Court-Martial Records in United States v. Bradley Manning

Dear Chief Judge Lind:

The Center for Constitutional Rights (CCR) represents the Wikileaks media organization and
ts publisher Mr. Julian Assange regarding access to the court-martial proceedings in United States v.
iradley Manning at Fort Meade, Maryland. We write to request that the Court make available to the
)ubliC and the media for inspection and copying all documents and information filed in the Manning
:ase, including the docket sheet, all motions and responses thereto, all rulings and orders, and verbatim
ranscripts or other recordings of all conferences and hearings before the Court. We have been unable
obtain access to these important documents and have been told that they are not being made
.vailable to the public, media or interested parties. As the Manning court martial purports to be a
nublic trial, we cannot understand why critical aspects of the proceedings are being withheld from
zublic view. As Circuit Judge Damon Keith wrote in Detroit Free Press v. Ashcroft, 303 F.3d 681,
383 (6th Cir. 2002): ?Democracies die behind closed doors.? We urge the Court to take the action
equired by military law and the Constitution and make these documents available.

First, there is no dispute that military law (including RCM 806) mandates a presumption of

-pen, public court-martial trials, which may be overcome only in limited circumstances based on
pecific findings thatclosure is necessary. The public, including the media, have First Amendment

nd common law rights of access to criminal trials. There is also no dispute that the public has a
ompelling interest in obtaining access to all documents and information filed in Pfc. Manning?s case
iven the nature of his alleged offenses. Access for media organizations, including groups such as
Vikileaks which provide groundbreaking independent reporting on issues of great international
igni?cance, is especially important to ensure transparency, freedom of the press, and the integrity of
1686 proceedings. The fairness of the proceedings have already been called into doubt by strong
vidence and recent findings by United Nations Special Rapporteur on Torture, Juan Mendez, that Pfc.
/Ianning suffered cruel, inhuman and degrading treatment if not torture during an 11-month period
solitary pretrial confinement in Kuwait and at Marine Corps Base Quantico.

a_xV?

666 broadway, 7 fl, new york, ny 10312 of Paws) Lo

212 614 6464 212 614 6499 WWw.CCRjustice.or_



Page






21239

Second, Wikileaks and Mr. Assange also have a unique and obvious interest in obtaining access
to documents and information ?led in this case. For more than a year, there has been intense
worldwide speculation that hundreds of thousands of allegedly classi?ed diplomatic cables published
by Wikileaks - as well as The New York Times, The Guardian, and other international media
organizations were provided to Wikileaks and/or Mr. Assange by Pfc. Manning. Mr. Assange
notably has a particular personal interest in this case because it appears that federal prosecutors in the
Eastern District of Virginia have obtained a sealed indictment against him conceming matters that,
based on prior of?cial statements, will likely be addressed in Pfc. Manning?s court-martial.

Notwithstanding these substantial interests, the Manning court-martial case thus far has not
proceeded with the requisite openness. Instead, to date this court-martial reflects and indeed
compounds the lack of openness experienced in Pfc. Manning?s prior Article 32 hearing. Documents
and information ?led in the case are not available to the public anywhere, nor has the public received
appropriate prior notice of issues to be litigated in the case. For example, undersigned counsel
attended the motions hearing on March 15, 201 2, and determined that it was not possible to understand
fully or adequately the issues being litigated because the motions and response thereto were not
available. Without access to these materials, the Manning hearings and trial cannot credibly be called

open and public. We do not understand how a court-martial proceeding can be deemed to comply with

the UCMJ or the Constitution unless its proceedings are accessible in a timely fashion. The public and
our clients must be given access to the legal ?lings when filed and prior to arguments before the Court.

In addition, like the prior Article 32 hearing, it appears that a number of substantive issues are
argued and decided in secret, in closed Rule 802 conferences. These important issues should be argued
and decided in open court and on the record. This impedes the public?s and media?s right to a public
trial. For example, when the undersigned was in court we were informed that the Court had signed a
pre -trial publicity order apparently after a closed door 802 discussion with counsel. The argument
regarding such an order, the decision and the order itself should have happened in public. This is
particularly so because the order concerns what can and carmot be said to the public and press; an order
of that sort should be dealt with in open court.

We therefore request that the Court order disclosure of all documents and information ?led in
the Manning case, and further implement procedures similar to those used in connection with military
commission proceedings at Guantanamo Bay to ensure that information is accessible to the public in a
timely and meaningful fashion. Speci?cally, we request that the Court enter an order requiring
immediate public access to all documents and information ?led to date in this case, and public
disclosure of documents and infonnation ?led now or in the future, including disclosure of motions
and responses thereto on a real -time basis, prior to argument and rulings on such motions.

We respectfully request that the Court enter such an order, or otherwise respond to this request,
by Friday, March 30, 2012, in order to allow Wikileaks and Mr. Assange to seek any further judicial
relief that may be necessary to protect their rights and the rights of the media and the general public.

21240

If you have any questions, please do not hesitate to Contact me.
Respectfully submitted,

1' :2

Michael Ratner
Center for Constitutional Rights



Counsel for and Julicm Assange

Jennifer Robinson

Jeh C. Johnson
General Counsel
Office of the General Counsel



21241

center. ?COI1SlilutZlO1?lCIl"If



April 23, 2012

David E. Coombs, Esq.
Law Office of David E. Coombs



Rc: United States v. Bradley Manning
Dear Mr. Coombs:

The Center for Constitutional Rights (CCR) represents the Wikileaks media organization and

its publisher Julian Assange regarding access to the court-martial proceedings in United States v.
Bradley Manning at Fort Meade, Maryland. We are also making this request for access on behalf of the
Center for Constitutional Rights, a non-pro?t legal and educational organization. We ask that you
forward copies of this letter to Chief Judge Lind and counsel for the prosecution in advance of the
hearings commencing April 24, 2012.

By letter to Chief Judge Lind dated March 21, 2012, CCR requested public access to
doctunents and information filed in this case, including the docket sheet, all motions and responses
thereto, all rulings and orders, and verbatim transcripts or other recordings of all conferences and
hearings before the Court. We have received no response to our letter, and, with the exception of
certain redacted defense motions recently published on your website, continue to be denied access to
the requested materials without legal justi?cation or other explanation.

Accordingly, in order to avoid any confusion and ensure that we have exhausted efforts to
obtain meaningful, timely access to documents and infonnation ?led in this case without further
litigation, we now renew our request for public access to these materials, including without limitation
the following items referenced in open court during the arraignment and motions hearings on February
23, March 15, 16 2012:

0 All orders issued by the Court, including the case management order, pretrial publicity
order, protective order regarding classified information, and other protective orders;

0 The government?s motion papers and responses to the redacted defense motions; and

0 Authenticated transcripts of all proceedings, including in particular transcripts of open court
sessions, at the same time and in the same form they are provided to counsel for the parties.


Page Ll lo



21242

This request includes timely public access to all documents and information ?led subsequent to the
March 16 hearing and all such documents and information ?led in the future. These should be
provided when ?led.

We further request that the Court require all conferences held pursuant to R.C.M. 802 be held
in open court and be made part of the record in this case, to the extent they involve substantive matters,
and regardless of whether the parties agree to have those substantive matters discussed and decided off
the record. Moreover, we request that all Rule 802 conferences which have already occurred be
reconstituted in open court.

To the extent these requests are denied (or not decided) we request an explanation for the
purported factual and legal basis for such result. We expect an immediate decision as the loss of First
Amendment rights in this context ?for even minimal periods of time? constitutes irreparable harm.
Elrod v. Burns, 427 U.S. 347, 373 (1976) (citing New York Times Co. v. United States, 403 U.S.

713 (1971)).

As you are aware, the First Amendment to the Constitution and the federal common law
guarantee a right of public access to criminal proceedings, including courts-martial, except in limited
See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982); Nixon v.
Warner Commc 'ns, Inc., 435 US. 589, 597 (1978). In particular, ?[t]he First Amendment guarantees
the press and the public a general right of access to court proceedings and court documents unless there
are compelling reasons demonstrating why it cannot be observed.? Washington Post Co. v. Robinson,
935 F.2d 282, 287 (D.C. Cir. 1991) (emphasis added) (citing cases); see also In re Washington Post
Co., 807 .2d 383, 390-91 (4th Cir. 1986) (same). Access may only be denied where the government
establishes that closure is necessary to further a compelling government interest and narrowly tailored
to serve that interest, and the court makes speci?c ?ndings on the record supporting the closure to aid
review. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). Any motion or request to
seal a doctunent or otherwise not disclose a document to the public must be ?docketed reasonably in
advance of [its] disposition so as to give the public and press an opportunity to intervene and present
their objections to the court.? In re Washington Post Co., 807 .2d 383, 390-91 (4th Cir. 1986)
(quoting In re Knight Publishing Co., 743 2d 231, 234 (4th Cir. 1984)).

Indeed, it is reversible error for a court to withhold from the public each and every document
?led, subject to further review and disclosure, because such procedures ?impermissibly reverse the
?presumption of openness? that characterizes criminal proceedings ?under our system of justice.?
Associated Press v. District Court, 705 .2d 1143, 1147 (9th Cir. 1983) (quoting Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980)). It is ?irrelevant? that some of the pretrial
documents might only be withheld for a short time. Id.

The Court?s authority to grant requests for public access pursuant to the All Writs Act,
28 U.S.C. 1651(a), is equally clear and indisputable. See, Denver Post Co. v. United States,
Anny Misc. 20041215 (A.C.C.A. 2005), available at 2005 CCA LEXIS 550 (exercising jurisdiction
and granting writ of mandamus to allow public access); see also ABC, Inc. v. Powell, 47 M.J. 363, 365
(C.A.A.F. 1997), available at 1997 CAAF LEXIS 74. This is particularly true given the Supreme
Court?s repeated conclusions that openness has a positive effect on the truth-detennining function of
proceedings and can affect outcome. See Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979)

21243

("Opem1ess in court proceedings may improve the quality of testimony, induce unknown witnesses to
come forward with relevant testimony, cause all trial participants to perform their duties more
conscientiously"); Richmond Newspapers, 448 U. S. at 596 (open trials promote "true and accurate
fact-finding") (Bre1man, J., concurring); Globe Newspaper, 457 U.S. at 606 ("[P]ublic scrutiny
enhances the quality and safeguards the integrity of the factfinding process.").
Finally,senior CCR attorney Shayana Kadidal will attend the hearing in this case on April 24,
2012. We request that he be afforded the opportunity to address the Court directly and present
arguments concerning our requests for public access to documents and information filed in this case.
If you,the prosecution or the Court have any questions concerning request, please do not
hesitate to contact Mr. Kadidal at

(b)(6)

Very truly yours,

Michael Ratner
Wells Dixon
Shayana Kadidal
Counsel for Wikileaks & Julian Assange

3

21244

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

ORDER:
v. GOVERNMENT MOTION:

PROTECTIVE
MANNING, Bradley E., PFC
U.S. Army,
Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer- DATED: 24 April 2012

Henderson Hall, Fort Myer, VA 22211

1. This Order applies when the Defense proposes to publicly release Defense Court ?lings or
proposed ?lings.

2. A pleading is ??led? with the Court when it is identi?ed as an exhibit on the record at an
Article 39(a) session. Pleadings served on the opposing party that have not been identi?ed on
the record at an Article 39(a) session are ?proposed ?lings?.

3. This Order is issued IAW MRE 505(g) and MRE 506(g) and RCM 70l(g) and RCM
806(d), and Seattle Times v. Rhinehart, 104 2199 (1984). The Order provides procedures
for the Government to request protective order(s) prior to any public release of Defense Court
?lings or proposed ?lings. The Court ?nds this Order necessary under the above authorities.
The Government has provided the Defense both classi?ed information and government
information subject to protective order under MRE 505(g)(1) and MRE 506(g). This Court has
issued a protective order for classi?ed information provided to the Defense in discovery. The
Defense accepted such discovery and agreed to comply with the protective orders. There have
been two classi?ed information spillage incidents to date in this case.

4. This Order supplements the Interim Order issued by the Court on 28 March 2012.
ORDER:

1. The Defense will notify the Government of each Defense Court ?ling or proposed ?ling
intended for public release. Defense will provide the Government with the original ?ling and the
redacted ?ling intended for public release.

2. Government motions for protective order will:
a. address each Defense Court filing or proposed Court ?ling individually and identify, with

particularity, each portion of the ?ling to which the Government objects to public release and the
legal basis for each objection to public release.

Page otPagc(9)


APPELLATE 1 . U033

21245

b. provide proposed ?ndings of fact for the Court with respect to each portion of each ?ling
to which the Government objects to public release.

3. Suspense Dates for Defense Court ?lings and proposed ?lings the Defense intends to
publicly release. The Court is currently scheduling Article 39(a) sessions with the following
schedule: 2 weeks to ?le motions; 2 weeks to ?le responses; 5 days to ?le replies.

a. NLT the scheduled ?ling date for motions, responses, or reply for each Article 39(a)
session, the Defense shall provide the Government notice IAW paragraph (1) of this Order.

b. The Government shall provide the Com with information ordered in paragraph (2) of
this Order NLT:

1. the scheduled ?ling date for responses for Defense motions;
2. the scheduled ?ling date for replies for Defense responses; and
3. 3 days after ?ling of Defense replies.

The Court will grant motions for continuance for good cause.

4. The Defense will not publicly release any Defense Appellate Exhibit or proposed ?ling with
the Court to which the Government objects until after the Government motion(s) for protective
order are addressed at the next scheduled Article 39(a) session.

5. The Defense will not disclose any information known or believed to be subject to a claim of
privilege under MRE 505 or MRE 506 without speci?c Court authorization. Prior to any
disclosure of classi?ed information, the Defense will provide notice under MRE 505(h) and
follow the procedures under that rule.

6. Personal identifying information (PH) will be redacted from all Defense ?lings publicly
released. PII includes personal addresses, telephone numbers, email addresses, first 5 digits of
social security numbers, dates of birth, ?nancial account numbers, and the names of minors.

7. To protect the safety of potential witnesses all persons who are not parties to the trial shall be
referenced by initials of ?rst and last name in any Defense ?ling publicly released.



DENISE R. LIND
COL, JA
Chief Judge, 1? Judicial Circuit

So ORDERED: this 24?? day of April 2012.







lipage 2 ol'Pnge(S)



21246

IN THE UNITED STATES ARMY



FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: DEFENSE MOTION
v. TO DIS MISS ALL CHARGES

WITH PREJUDICE
MANNING, Bradley E., PFC
U.S. Army,
Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer- DATED: 25 April 2012
Henderson Hall, Fort Myer, VA 22211

Defense moves under RCM 701(g)(3)(D) to dismiss all charges with prejudice for
discovery violations. The Government opposes. After considering the pleadings, evidence
presented, and argument of counsel, the Court finds and concludes the following:

Factual Findings and the Law: The Court adopts the ?ndings of fact contained in its Ruling
re: Motion to Compel Discovery (AB) and the Law described therein.

Conclusions of Law:

1. In trial by general court?martial in the military justice system, charges are preferred against
an accused, the charges are investigated by an Article 32 investigating o?icer, and forwarded
with recommendations to the convening authority who makes a decision whether to refer the
case to trial. RCM 307, 405, 406, 407, 504, and 601.

2. In this case the original charges were preferred on 5 July 2010 and dismissed by the
convening authority on 18 March 2011. The current charges were preferred on 1 March 2011.
The Article 32 investigation was held 16-22 December 2011. The convening authority referred
the current charges to trial by general court-martial on 3 February 2012.

3. Unlike trials in Federal District Court, a military judge is not detailed to a court-martial until
the case is referred. This case was referred on 3 February 2012. Article 26(a), UCMJ.

4. RCM 701 and RCM 703 govem discovery and production of evidence after a case has been
referred for trial by the Convening Authority and a military judge has been detailed.

5. The President promulgated RCM 701 to govern discovery and RCM 703 to govern evidence
production after referral. The rules work together when production of evidence not in the
control of military authorities is relevant and necessary for discovery. US. v. Graner, 69 104
(C.A.A.F. 2010). The requirements for discovery and production of evidence are the same for
classi?ed and unclassi?ed information under RCM 701 and 703 unless the Government moves
for limited disclosure under MRE 505(g)(2) or claims the MRE 505 privilege for classi?ed
information. If the Govemment voluntarily discloses classi?ed information to the defense, the
protective order and limited disclosure provisions of 505(g) apply. If, after referral, the



.. an
Page i of Page(S) 4-4

. .






21247

Govermnent invokes the classi?ed infonnation privilege, the procedures of MRE 505(t) and
apply-

6. From the 8 March 2012 Government response to Defense Motion to Compel Discovery and
its email of 22 March 2012, the Court ?nds that the Government believed RCM 701 did not
govern disclosure of classi?ed information for discovery where no privilege has been invoked
under MRE 505. This was an incorrect belief. The Court finds that the Government properly
understood its obligation to search for exculpatory Brady material, however, the Government
disputed that it was obligated to disclose classi?ed Brady information that was material to
punishment only. The Court finds no evidence of prosecutorial misconduct.

7. Although the RCM and military case?law encourage early and open discovery, the Defense
does not have a right to discovery under RCM 701 or Brady prior to referral on 3 February 2012.

8. Most of the information contained in the damage assessments requested by the Defense is
maintained by other government agencies. To obtain such information from other Govemment
agencies under RCM whether discoverable under RCM 701 or not, requires the
Defense to show relevance and necessity. The Government does not have authority to compel
production of evidence from other government agencies under RCM 703(f)(4)(A) until after
referral.

9. As the Court held in its 23 March 2012 ruling re: Motion to Compel Discovery, the fact that
information controlled by another agency is discoverable under RCM 701 may make such
information relevant and necessary under RCM 703 for discovery.

10. The Government has requested 13 departments, agencies, and commands to segregate and
preserve records involving Wikileaks and requested information potentially discoverable from
more than 50 additional agencies. This is a complex case involving voluminous classi?ed
infonna?on in the custody of multiple government agencies who have na?onal security concerns
with the disclosure of this information. As of 12 April 2012, the Government has produced
2,729 unclassi?ed documents, consisting of 81,273 pages, and 41,550 classi?ed documents
totaling 336,641 pages. To secure this release, the Govemment coordinated with multiple
government agencies to issue protective orders under MRE 505(g) and court orders for release of
grand jury matter.

11. It is not unreasonable for Government agencies possessing potentially discoverable
classi?ed information to await the detail of a military judge to litigate issues of relevance,
materiality, and necessity, and, subsequently, to litigate issues arising under MRE 505 and MRE
506 prior to releasing classi?ed discovery to the Trial Counsel to disclose to the Defense.

12. The Defense moved to compel the discovery it desires on 14 February 2012, 11 days after
referral. On 23 March 2012, the Court ordered the Govemment: to immediately begin the
process of producing the damage assessments for in camera review to assess whether they are
favorable or material to the preparation of the defense under RCM 701(a)(6), RCM 701(a)(2),
and Brady; to immediately cause an inspection of the 14 hard drives; to contact DOS, FBI, DIA,
ONCIX, and CIA to determine whether any of these agencies contain any forensic results_ or;


APPELLATE
Page 3





21248

inves?gative ?les relevant to this case; to advise the court by 20 April 2012 whether it
anticipates any government entity that is the custodian of classi?ed information subject to the
defense motion to compel will seek limited disclosure IAW MRE 505(g)(2) or claim a privilege
IAW MRE 505(c); and by 18 May 2012 to disclose any favorable unclassi?ed information from
the 3 damage assessments to the Defense and all classi?ed information from the 3 damage
reports to the Court for in camera review.

13. The parties? proposed trial schedules anticipate trial taking place between late September
and November 2012 absent the unanticipated ?ling of additional motions. Litigation of disputed
discovery is taking place well before trial. There is no discovery or Brady violation in this case.

RULING: The Defense motion to Dismiss all Charges with Prejudice is DENIED.



DENISE R.
COL, JA
Chief Judge, 1? Judicial Circuit

So ORDERED: this 25"? day of April 2012.




3 APPELLATE
page 5. 3

21249

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
RULING: DEFENSE
v. MOTION TO COMPEL
GRAND JURY TESTIMONY

MANNING, Bradley E., PFC
U3 Armys
HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall DATED: 25 April 2012
Fort Myer, Virginia 22211

Defense moves the Court to Compel the Government to produce the entire grand jury
proceedings in relation to PFC Manning or Wikileaks IAW RCM 70 1 as material to the
preparation of the defense or, in the alternative, moves the Court to order the testimony produced
for in camera review to determine whether the evidence is discoverable under RCM 701(a)(2).
If the Court determines that grand jury testimony is not in the possession, custody, or control of
military authorities, the Defense moves the Court to order production of the entire grand jury
investigation under the ?relevant and necessary? standard. The Government opposes on the
grounds that FBI files are classi?ed, DOJ ?les relating to the accused and Wikileaks are law
enforcement sensitive and contain grand jury information, and that the prosecution has no
authority to produce any FBI or DOJ ?les that have not already been produced to the defense.

Findings of Fact.

1. The FBI participated with CID in a joint investigation of the accused. CID was to the lead
agency with respect to the investigation concerning the accused.

2. There has been (one or more) grand jury investigation(s) involving Wikileaks.

3. The Govemment has access to the FBI investigation files and the grand jury proceedings for
the purpose of reviewing them for favorable infomiation material to guilt or punishment that
must be disclosed to the defense under Brady v. Maryland, 373 U.S. 83 (1963).

The Law.

1. Grand jury proceedings are not discoverable under RCM 701. Such proceedings are not
books, papers, documents, photographs, tangible objects, or places IAW RCM 701(a)(2), nor are
they within the possession, custody, or control of military authorities. Neither the Govemment
nor any other military authority has authority to disclose grand jury matter without an order from
the district court where the grand jury convened. Fed. R. Crirn. P.


Page i of Page(s)

21250

2. RCM 701(a)(2) is based on Fed. R. Crim. P. Fed. R. Crim. P.
states that Rule 16 does not apply to the discovery or inspec1:ion of a grand jury?s recorded
proceedings, except as provided in Fed. R. Crim. P. 6, 12(h), and 26.2.

3. Grand jury_ proceedings are secret. Provisions authorizing limited disclosures are govemed by
Fed. R. Crim. P. The District Court where the grand jury convened may authorize
disclosure preliminarily to or in connection with a judicial proceeding. A petition to disclose a
grand-jury matter must be ?led in the district where the grand jury convened. Fed. R. Crim. P.

and

4. As the FBI and DOJ are aligned law enforcement agencies who have participated in a joint
investigation of the accused, the Government has a duty to review such investigatory ?les
maintained by the FBI and DOJ, to include grand jury matter, for exculpatory Brady material and
disclose the existence of such material to the Defense. If such ?les are under the control of
another government entity, Trial Counsel must make that fact known to the Defense and engage
in ?good faith efforts? to obtain the material. US. v. Williams, 50 MJ. 436 (CAAF 1999).

5. RCM 914 (Production of Statements of Witnesses) provides that after a witness testi?es on
direct examination, the party who called the witness is required to produce any prior statements
by the witness examination and use by the other party. Statements include those made by a
witness to a Federal grand jury. RCM 914(f)(3).

6. Federal courts require parties seeking access to grand jury transcripts to show a particularized
need and that the material they seek is necessary to avoid a possible injustice, the need for
disclosure is greater than th need for continued secrecy, and the request is structured to cover
only material so needed. See US v. McDavia?, 2007 WL 926664 (ED. CA 2007); US v. Upton,
856 F. Supp. 727 (E.D.N.Y. 1994).

Conclusions of Law.
1. Grand jury matter is not discoverable under RCM 701.

2. The Government is required to access and examine any grand jury investigation germane to
the accused for exculpatory Brady infonnation and disclose the existence of such information to
the defense.

3. The Government is required to disclose prior grand jury statements of any government
witnesses who testify IAW RCM 914. Although the rule does not require the Government to
disclose such statements until after the witness has testified under direct examination, the Court
will exercise its discretion under RCM 801(a)(3) to set a reasonable deadline for such disclosure
in advance of trial.

4. The defense moved the Court to compel the production of the entire grand jury investigation
as relevant and necessary under RCM 703 The defense has not demonstrated a basis for
relevance and necessity, much less the particularized need required to access grand jury
transcripts.

APPELLATE EXHIBIT LXW

3

21251

Ruling: The Defense motion to Compel production of the entire grand jury inves?gation
involving the accused and Wikileaks is DENIED. The Government will examine such grand
jury investigation(s) for exculpatory Braaj? material and for prior statements required to be
produced under RCM 914 and will take appropriate steps under Fed. R. Crim. P. 6(e) to disclose
such information to the Defense.

So Ordered this 25*? day of April 2012.



DENISE R. LIND
COL, JA
Chief Judge, 15? Judicial Circuit

APPELLATE EXHIBIT 1-94 I
ofPagc(s) 3

21252

UNITED STATES OF AMERICA
v.
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

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Scheduling
Order

25 April 2012

1. The Court is currently scheduling Article 39( a) sessions with the following default schedule
at the request of the parties: two weeks for parties to file motions; two weeks for patties to file
responses; five days for parties to file replies; and one week for the Court to review all pleadings
before the start of the motions hearing. The time for filing replies was added after the first
Article 39( a) session on 15 - 16 March 2012 because the Court received reply briefs the day
before that session, the parties desire to continue to file replies, and the Court requires time to
consider them.
2. Scheduling dates and suspense dates are set forth below. This schedule was coordinated with
the patties. The trial schedule will be reviewed and updated as necessary at each scheduled
Article 39(a) session.
a. Phase 1. Immediate Action (21 February 2012 - 16 March 2012)
b. Phase 2( a). Legal Motions excluding Evidentiary Issues (29 March 2012 - 26 April
2012)
(A) Filing: 15 March 2012
(B) Response: 12 April 2012
(C) Reply: 17 April 2012
(D) Article 39( a): 24-26 April 2012

(1) Defense Motion to Dismiss all Charges and their Specifications with Prejudice
(2) Government Motion for Appropriate Relief to Preclude Actual Harm or
Damage from the Merits Portion of Trial
( 3) Defense Motion to Dismiss Article 104 Offense
(4) Defense Motion to Dismiss Specification 1 of Charge II
(5) Defense Unreasonable Multiplication of Charges Motion
(6) Defense Renewal for Motion to Compel Discovery of Computers
(7) Defense Renewal for Bill of Particulars
(8) Reciprocal Discovery Requests
1

, L�
APPELLATE EXtiiBlT_!-� '(_

J



Pa&e___L_ ofPage(s) �

21253

(9) MRE 404(b) Disclosures
(1 0) Updated Proposed Case Calendar
(11 ) Results of Hard Drive Searches to Defense in Response to Defense Motion to
Compel Discovery #1
(A) Date: 20 April 201 2
(1 2) Government Notification to Court Whether Relevant Files Exist with DOS,
FBI, DIA, ONCIX, and CIA
(A) Filing: 20 April 201 2
(1 3) Government Notification to Court of Whether it Anticipates Limited Disclosure
or Claim of Privilege, based on (12) above
(A) Filing: 20 April 201 2
(1 4) Protective Order- Defense Publication of Its Motions
(A) 29 March 201 2/ 2 April 201 211 2 April 201 211 7 April1 2- defense notifications
and redactions
(B) 1 7 April 201 2/1 9 April 201 2- Government Objections and Motions for
Protective Order
( C) 20 April 201 2-Defense Replies
(1 5) Defense Motion to Reconsider Compel Discovery- Grand Jury ( unscheduled)
c. Phase 2( b). Legal Motions (10 May 2012- 8 June 2012)
(A) Filing: 1 0 May 201 2
(B ) Response: 24 May 201 2
( C) Reply: 29 May 201 2
(D) Article 39( a): 6-8 June 201 2
(1 ) Defense Motion to Dismiss All Charged Offenses under 1 8 U.S.C. 793(e)
(2) Defense Motion to Dismiss All Charged Offenses under 1 8 U.S.C. 1030(a)(l)
(3) Government and Defense Motions for Proposed Lesser Included Offenses
(4) Defense Motion to Compel ONCIX, DOS, FBI investigation lAW RCM
701(a)(2)
(5) Government Motion to Reconsider Motion to Compel DOS Damage Assessment
(6) Defense Motion to Exclude Uncharged Misconduct (MRE 404(b))
(7) Updated Proposed Case Calendar

2

APPELLATE EXHIBIT

�(

Page� ofPage(s) �

21254

(A) Filing: 24 May 12
(B) Response: 29 May 12
(8) Disclosure of Unclassified Results of 3 Damage Assessment Searches to Defense
in Response to the Court's Ruling, 30 March 2012
(A): 18 May 2012
(9) Disclosure under RCM 701(g)(2) or MRE 505(g)(2) of all Information
(Unclassified and Classified) to the Court in Response to the Court's Ruling, 30 March
2012
(A): 18 May 2012
(10) Government Filing for In Camera Proceeding IAW MRE SOS(i) with Notice to
Defense (if Privilege is Claimed) in Response to the Court's Ruling, 30 March 2012
(Disclosure Issues)
(A): Filing: 18 May 2012
(B): Response: 29 May 2012
(C): Reply: N/ A
(D): Article 39( a): 6-8 June 2012
(11) Court Rulings based on in camera review of damage assessments
(A): Article 39( a): 6-8 June 2012
d. Phase 3a. Evidentiary Issues (22 June 2012 - 20 Julv 2012)
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: 11 July 2012
(D) Article 39( a) : 16-20 July 2012
(1) Defense Motion to Compel Discovery #2 (if any)
(2 ) Government Motion to Compel Discovery (if any)
(3) Motions in Limine (Evidence Discovered to Date)

(4) Motions to Suppress (Evidence Discovered to Date)
(5) Pre-Authenticate/Pre-Admit Evidence

(6) Requests for Judicial Notice

(7) Witness Lists Exchanged/Compel Witnesses & Experts
(A) Filing: 22 June 2012
(B) Government Objection toDefense Witnesses: 6 July 2012
(C) Motion toCompel Production: 11 July 2012
(D) Response: 13 July 2012
WI-'ELLATE EXIDBIT

3
·

I,..)( X

Pat�e� ot'Page(s) 4'

21255

(8) Proposed Members Instructions for all Charged Offenses
(9) Motion for Clarification of Brady material
(10) Defense Notice of Intent to Disclose Classified Information under MRE
SOS(h)(1 ) (For Discovery Received- Motion to Compel #1 )
(A) Filing: 22 June 2012
(11) Defense Notice of Plea/Forum
(A) Filing: 11 July 2012
(12) Updated Proposed Case Calendar
(A) Filing: 6 July 2012
(B) Response: 11 July 2012
(13) Proposed Questionnaires- the pmiies will confer and arrive at a questiom1aire
Before the Article 39( a) session 16-20 July 2012. Issues of disagreement will be
addressed at the Aliicle 39( a) session where the questionnaire will be approved and
submitted to detailed members and alternates for response N L T 3 August 2012.
e. Phase 3b. Evidentiary Issues ( 3 August 2012- 31 August 2012)
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(C) Reply: 22 August 2012
(D) Article 39( a): 27-31 August 2012
(1) Motions in Limine (Classified Information not previously Disclosed)
(2) Motions to Suppress (Classified Information not previously Disc. losed)
(3) Article 1 3
(A) Filing: 27 July 2012 1
(B) Response: 17 August 2012
(C) Reply: 22 August 2012
(D) Article 39( a): 27-31 August 2012
(4) Speedy Trial, including Article 10
(A) Filing: 27 July 2012 2
( B) Response: 17 August 2012
1

The filing date of one week earlier for the defense motions is in accordance with their schedule to give

the United States the necessary time to respond.
2

The filing date of one week earlier for the defense motions is in accordance with their schedule to give

the United States the necessary time to respond.

4

APPELLATE EXHIBIT {....)( ')(
Page_!±_ ofPage(s)

I(,

21256

(C) Reply: 22 August 2012
(D) Article 39(a): 27-31 August 2012
(5) Pre-Qualify Experts
( 6) Government Filing for In Camera Proceeding lAW MRE SOS(i) with Notice to
Defense (if Privilege is Claimed) in Response to the Court's Ruling, 30 March 2012 (Use as
3
Evidence) and Other Remaining Litigation Concerning MRE SOS(h) and MRE 505(i)
(7) Production of Compelled Discovery for Defense Motion to Compel Discovery #2
or Production of Limited Discovery under MRE 505(g)(2) or (3) or Notification to Court of
Claim of Privilege under MRE 50S( c)
(8) Production of Compelled Discovery for Government Motion to Compel
Discovery
(9) Defense Additional Witness List in light of Information in Defense Motion to
Compel Discovery #2. Defense Notice of Intent to Disclose Classified Information under
MRE SOS(h) from Compelled Discovery #2.
(10) Updated Proposed Case Calendar
(A) Filing: 17 August 2012
(B) Response: 22 August 2012
f.

Phase 4. Miscellaneous Motions (1 September 2012- 21 September 2012)

(1) Any Additional Motion that does not have an Identified Deadline
(A) Filing: 7 September 2012
(B) Response: 14 September 2012
(C) Article 39(a): 19-20 September 2012
(2) Grunden Hearing for all Classified Information
(A) Filing: 7 September 2012
(B) Response: 14 September 2012
(C) Article 39(a): 19-20 September 2012
(3) Voir Dire Questions, Flyer, Findings/Sentence Worksheet, all CMCO
(A) Filing for Court Review: 14 September 2012
(B) Article 39(a): 19-20 September 2012
g. Phase 5. Trial by Members (20 September 2012- 12 October 2012)

3 Government advised the Comt will need

15 duty days to review discoverable material.

5

L"1< ;APPELLATE EXHIBIT

1

Page� ofPage(s) (c


-=-

---

-

-

21257

(1) VoirDire: 21 September 2012
(2) Trial: 24 September 201 2- 12 October 2012
So Ordered this 25th day of April 2012.

til/�

DEN ISE R. L IND
COL , JA
Chief Judge, 1st Judicial Circuit

6

APPELLATE EXHIBIT t.x X
Page� ofPage(s) lo

21258

UNITED STATES OF AMERICA
v.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

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GOVERNMENT MOTION
FOR RECONSIDERATION
OF COURT'S RULING ON
DEPARTMENT OF STATE
DAMAGE ASSESSMENT
26 April2012

RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court reconsider a portion of its ruling, dated 23 March 2012, on the
Defense Motion to Compel Discovery. The United States requests the Court make a
determination that the draft Department of State damage assessment, and any information
contained therein, is not discoverable because of its speculative nature.
BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the United States has the burden of persuasion on any factual issue
the resolution of which is necessary to decide the motion. Rule for Courts-Martial (RCM)
905(c)(2). The burden of proof is by a preponderance of the evidence. RCM 905(c)(l).
FACTS

In its ruling dated 23 March 2012, the Court ordered the Government to disclose all
unclassified and classified information from the Department of State damage assessment to the
Court for in camera review under RCM 701(g)(2), or claim a privilege with respect to the
classified information in the draft damage assessment. The Court also ordered the Government
to identify what unclassified and classified information from the draft Department of State
damage assessment was favorable to the accused and material to guilt or punishment. In its
ruling, the Court found that the draft Department of State damage assessment was relevant and
necessary for the Court to conduct an in camera review to determine whether it contains
information that is favorable to the accused and material to guilt or punishment under Brady v.
Maryland, 373 U.S. 83 (1963), or information relevant and favorable to the accused under RCM
701(a)(6).
On 25April 2012, the Department of State provided a cover letter with the draft
assessment for the Court's determination. See Enclosure 1. This letter provides background on
the damage assessment, and the prosecution has the authority to disclose the letter to the defense
counsel, but not the accused. The Department of State has not authorized the prosecution to
disclose Enclosure 2 to the defense or accused, therefore it is submitted to the Court ex parte.

1

21259

WITNESSES/EVIDENCE

1. Cover Letter, dated 25 April 2012 (classified "CONFIDENTIALI/NOFORN").
2. Enclosure to Cover Letter (classified "SECRET//NOFORN") and submitted ex parte.
LEGAL AUTHORITY AND ARGUMENT

Under RCM 701(g)(2), a military judge may order that discovery be denied. Upon
motion of a party, the military judge may permit the party to make such a showing related to
discovery, in whole or in part, in writing to be inspected only by the military judge. In this case,
the Court has already ruled that the draft Department of State damage assessment be produced
for its in camera review. The prosecution does not presently have the authority to produce the
draft or any portion thereof to the defense or the accused.
A document that is preliminary, challenged, or speculative is not subject to discovery,
even if it contains information that is potentially favorable to the accused and material to guilt or
punishment. See Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, J., concurring). The draft
damage assessment produced by the Department of State is a preliminary assessment of the
damage caused by the WikiLeaks disclosure of Department of State diplomatic cables. See
Enclosures 1 and 2. As a draft, the document is preliminary and speculative in nature, which
should be apparent when reviewing the actual draft. The document does not represent the
current assessment of the Department of State, merely a snapshot during a specific period of
time. Although a draft document could contain information which is derived from final
products, the draft itself cannot be information favorable to the accused and material to guilt or
punishment because it does not in any way represent the current or past final assessment of the
Department as a whole, or specific individuals in part.
If the Court finds the draft damage assessment, or any information contained within, is
subject to a Brady review, pursuant to the Court's order, dated 23 March 2012, then the
prosecution will review the document to identify RCM 701(a)(6) and Brady material and
coordinate with the Department of State to meet the Court's 18 May 2012 suspense.
CONCLUSION

The United States requests the Court reconsider, in part, its Order dated 23 March 2012
with respect to the draft Department of State damage assessment and determine the draft
assessment is not discoverable.

ASHDEN FEIN
MAJ, JA
Trial Counsel

2

21260

I certify that I served or caused to be served a true copy of the above on Mr. David E. Coombs,
Civilian Defense Counsel, without Enclosure 1, on 26 April 2012.

ASHDEN
IN
MAJ, JA
Trial Counsel

3

21261

Appellate Exhibit 71
Enclosure 1
2 pages
classified
"CONFIDENTIAL"
ordered sealed for Reason 3
Military Judge's Seal Order
dated 20 August 2013
stored in the classified
supplement to the original
Record of Trial

21262

Appellate Exhibit 71
Enelosure2
pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20 August 2013
stored in the classified
supplement to the original
Record ofTrial

21263

UNITED STATES OF AMERICA

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v.
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Prosecution Brief
Discussing Investigations and
Damage Assessments

26 April2012

The United States respectfully submits this brief for the Court's consideration.
SUMMARY

Investigations can be broken down into two general categories: criminal and
administrative. Criminal investigations are concerned with discovering evidence and finding the
individual responsible for the crime. Administrative investigations encompass fact finding
inquiries. Both criminal and administrative investigations comprise searches for information to
aid making factual determinations. Damage assessments, however, as multi-discipline, multi­
agency, lengthy inquiries, consider the effects of compromised classified information to reach
strategic opinions.
DISCUSSION

Criminal investigations seek to discover the perpetrator of the crime and assign liability.
An inquiry becomes a criminal investigation when it is conducted with a view toward
discovering evidence to be used in the prosecution of a criminal action. See

United States v.

Goldfinch, 41 C. M.R.500, 507 (A.C.M.R. i969) (determining that inclusion of CID
participation at inception of a health and safety inspection turned the search into a criminal

Williams also contemplates investigations being
See United States v. Williams, 50 M.J.
436, 443 (C.A.A.F.1999) (stating that the Brady line of cases requires the prosecution to review
investigation concerned with prosecution).

oriented towards discovery of the responsible individual.

records directly related to the subject of the prosecution absent a specific defense request
identifying the entity, type of records, and type of information).

Furthermore,

Williams

discusses criminal investigations in terms of proceedings designed to assign criminal liability.

See United States v. Williams, 47 M.J.621, 626 (A.Ct. Crim. App. 1997), aff'd, 50 M. J. 436
(C.A.A.F. 1999) ("A trial counsel's duty to disclose ...includes information which the trial
counsel has personal knowledge of or is known to criminal investigators or others that are
working on the case being investigated and prosecuted.") (emphasis added). Ultimately, the fact
finder reaches a factual determination based on the evidence gathered in the criminal
investigation.

United States v. Augspurger, 61 M. J.189, 191 (C.A.A.F 2005).

Administrative investigations are designed to find facts. See, e.g., US. Dep 't of Army
Reg. 15-6, Procedures for Investigating Officers and Boards of Officers, para. 1 -5 (a) (2 Oct.
2006) ("An administrative fact-finding procedure under this regulation may be designated an

21264

investigation or a board of officers.") (AR 15-6). Nevertheless, administrative actions are
considered separate from criminal investigations1 because they serve distinct purposes. United
States v. Turner, 33 M.J. 40, 41 (stating that administrative inspections determine the fitness and
readiness of a unit and are therefore unlike searches for evidence as part of the criminal justice
process). Similarly, the results stemming from the investigation also distinguish criminal and
administrative investigations. United States v. Bickel, 30 M. J. 277, 285 (C.M.A. 1990)
(differentiating between actions that result in admonitions or adverse administrative actions and
those resulting in criminal prosecution). Despite these differences, similar to a judicial
proceeding's verdict, administrative investigations make recommendations based upon the facts
of the investigation. See AR 15-6 para. 3-11 ("Each recommendation, even a negative one . ..
must be consistent with the findings.").
Army and Department of Defense (DOD) regulations also discuss investigations in terms
of locating relevant facts and persons responsible for compromised or lost classified information.
See US. Dep't of Army Reg. 380-5, Department of the Army Information Security Program,
para. 10-1(a) (29 Sept. 2000) (AR 380-5); Dep't of Defense Regulation 5200.1-r, Information
Security Program, 10-100(a) ( Jan. 1997) (DOD 5200.1-r); see also US. Dep't of Army Reg. 38120, The Army Counterintelligence Program, para. 4-2 (15 Nov. 1993). AR 380-5 and DOD
5200.1-r investigations are both search oriented-they operate to determine who contributed to
losing or compromising classified information and fact finding related thereto. See AR 380-5
para. 10-1(a)(1)-(2) (requiring the investigation to determine whether the classified information
was compromised and what persons, situations, and/or conditions contributed to the incident);
DOD 5200.1-r 10-1OO(b)-(c). To meet the regulatory goals of limited scope, investigations
under AR 380-5 and DOD 5200.1-r must be conducted promptly to ensure results are reported
promptly. See AR 380-5 para. 10-1(a); DOD 5200.1-r 10-100(a). Moreover, investigations
under AR 380-5 do not foreclose separate actions relating to the same incident. See AR 380-5
para. 10-1(b).
Damage assessments can relate to the same incident as an investigation; however,
damage assessments are distinct from investigations because they are strategic, long-term
analyses and not fact finding or criminal endeavors. See, e. �., AR 380-5 para. 10-5(f); but see
United States v. Lonetree, 35 M. J. 396, 403 (C.M.A. 1992). Damage assessments remain
separate and distinct from classification reviews, which are performed in support of a
prosecution, and from damage control, which is performed immediately after the discovery or
disclosure of the compromise of classified information. See Dep't of Defense Instruction
5240.11, Damage Assessments, Encl. 2 para. E2.1.4 (23 Dec. 1991) (DOD 5240.11).
1

Although, administrative investigations are distinct from criminal investigations because they are fact finding

rather than judicial proceedings, administrative investigations can transition into criminal ones based on the results
of the investigation. United States

v.

Cohen, 63 M.J. 45, 51-52 (C.A.A.F. 2006) (noting that instruction

contemplated the possibility that the investigation could transition into a criminal one from an administrative one).
2

In dicta, Lonetree refers to a damage assessment as a "damage-assessment investigation." Lonetree, 35 M.J. at

403. However, the Lonetree held the damage assessment was not a criminal investigation for purposes of
determining whether the accused was entitled to an Article 31(b) warning because it was not coordinated with the
military criminal investigation. Id. at 404. Also, the court uses the term "damage assessment" to refer to a series of
interviews with a single person, the accused, and this usage is inconsistent with the manner in which the term is used
in the case against the accused and in the cited laws and regulations.

2

21265

Additionally, regulations treat damage assessments separately from investigations because the
two are considered separately in different sections of Army and DOD regulations. Compare AR
380-5 para. 10-1 with AR 380-5 para. 10-5; and compare DOD 5200.1-r 10-100 with DOD
5200.1-r 10-104 (directing the reader to complete a damage assessment in accordance with DOD
5240.11).
Specifically, damage assessments are "a long-term, multi-disciplinary analysis of
adverse effects of the compromise on systems, plans, operations, and/or intelligence." AR 380-5
para. 10-5(f). Accordingly, the Counterintelligence Enhancement Act of 2002 (CI Enhancement
Act) labels damage assessments "strategic analyses" and not "investigations."
Counterintelligence Enhancement Act of 2002, 50 U.S.C. § 402c(d)(4). The CI Enhancement
Act additionally authorizes the Office of the National Counterintelligence Executive (NCIX) to
conduct damage assessments but prohibits it from carrying out investigations. See id. at §
402c(d)(4), (6) (prohibiting NCIX from conducting counterintelligence investigations or
operations). Unlike the rapid response of damage control, damage assessments are typically
conducted post-prosecution. !d. (stating the that damage assessments should be conducted after
a prosecution unless special circumstances necessitate a pre-prosecution assessment).
Conducting damage assessments post-prosecution comports with the time requirements required
to determine in great detail the practical effects of a compromise on operations, systems,
materials, and intelligence. See id. Upon completion, the analyses of intelligence systems in a
damage assessment are delivered to security decision-makers. See Office of the National
Counterintelligence Executive, The National Counterintelligence Strategy of the United States at
10 (Mar. 2005). Ultimately, the opinions presented in the damage assessments shape future
intelligence policy at a national level. See id.

CONCLUSION

Based on the above, the United States submits that the term "investigation" does not
include damage assessments. Whereas investigations pursue facts and conclusions based
thereon, damage assessments look at the strategic effects of lost or stolen classified information.
Damage assessments are conducted without an eye toward prosecution, unlike criminal
prosecutions, or without a strict fact finding purpose, unlike administrative investigations.
Employing multiple disciplines and multiple agencies, damage assessments expansively analyze
more than facts-they analyze systems, operations and plans. Significantly, the theories damage
assessments dictate policy. Contrastingly, investigations simply determine details to reach
factual conclusions.

ALEXANDERvoNELTEN
1LT, JA
Assistant Trial Counsel

3

21266
IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
)

UN ITE D ST A TES

)

)

v.

CLA SS IF IED INFORMATION

)
Garrison

)

Me
y r-Henderson Hall

)

HHC , U.S . Army
Joint Base

SEAL ORDER

)

MA NNING, Bradle y E., PFC

)

Fort Myer, Virginia 22211

26 April 2012

1. A portion of AE LXXI (71) (Enclosure 1) contains classified information as defined in MRE 505(b).
The enclosure is classified at the CONFIDENTIALI/NOFORN level. This portion of the exhibit will be
sealed in the record of trial in accordance with RCM 1103A, RCM 1104(b)( l )(D), and MRE 505.
2. The Court Security Officer shall cause a proper security classification to be assigned to the record of
trial, to each classified exhibit, and to each page of the record of trial in which classified information
appears, in accordance with RCM 11 03(h). The Court Security Officer will ensure that the sealed
exhibits are properly marked, including an annotation on each, that the material was sealed by order of the
military judge prior to insertion into the original record of trial. Trial counsel will clearly identify in the
record of trial where classified exhibits and pages in the record of trial will be maintained.
3. This portion of the exhibit contains classified national security information. This classified
information shall be handled in a manner consistent with Executive Order 13526. An individual's access
to the classified information in this exhibit is subject to the following: having the appropriate security
clearance; signing an approved nondisclosure agreement; having a need-to-know the information; and
acknowledging the Judicial Protective Order for Classified Information, dated 16 March 2012.
4. Sealed exhibits will not be opened or examined except for the following:
a.

Prior to authentication of the record by the military judge, sealed materials may be examined upon

order from the military judge based on good cause.
b.

After authentication and prior to disposition of the record of trial pursuant to RCM 1111, sealed

materials may be examined upon order issued from the military judge upon a showing of good cause at a
post-trial Article 39(a) session directed by the Convening Authority.
c.

Reviewing and appellate authorities meeting the criteria in paragraph 3 may examine sealed

matters when those authorities determine that such action is reasonably necessary to a proper fulfillment
of their responsibilities under the Uniform Code of Military Justice, the Manual for Courts-Martial,
governing directives, instructions, regulations, and applicable rules of professional responsibility.
5. No person authorized to examine sealed exhibits shall photocopy, photograph, duplicate, or disclose
the contents of the sealed exhibit in the absence from an order by a military judge, the Judge Advocate
General or designee, or an appellate court, or other court of competent jurisdiction.
ORDERED, this the 26th day of April 2012.

cd}/tf/
DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit
APPELLA1E EXHIBIT �x: II I
l _ ofPage(s)
Page_

I

21267

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
)
)
v.
)
CLASSIFIED INFORMATION
SEAL ORDER
)
MANNING, Bradley E., PFC
)
HHC, U.S. Army Garrison
)
Joint Base Myer-Henderson Hall
)
Fort Myer, Virginia 22211
26 April 2012
)

1. A portion of AE LXXI (71) (Enclosure 2) contains classified information as defined in MRE 505(b).
The enclosure is classified at the SECRET//NOFORN level. This portion of the exhibit will be sealed in
the record of trial in accordance with RCM 11 03A, RCM 11 04(b)(1 )(D), and MRE 505.
2. The Court Security Officer shall cause a proper security classification to be assigned to the record of
trial, to each classified exhibit, and to each page of the record of trial in which classified information
appears, in accordance with RCM 1103(h). The Court Security Officer will ensure that the sealed
exhibits are properly marked, including an annotation on each, that the material was sealed by order of the
military judge prior to insertion into the original record of trial. Trial counsel will clearly identify in the
record of trial where classified exhibits and pages in the record of trial will be maintained.
3. This portion of the exhibit contains classified national security information. This classified
information shall be handled in a manner consistent with Executive Order 13526. An individual's access
to the classified infonnation in this exhibit is subject to the following: having the appropriate security
clearance; signing an approved nondisclosure agreement; having a need-to-know the information; and
acknowledging the Judicial Protective Order for Classified Information, dated 16 March 2012.
4. Sealed exhibits will not be opened or examined except for the following:
a. Prior to authentication of the record by the militruy judge, sealed materials may be examined upon
order from the militmy judge based on good cause.
b. After authentication and prior to disposition of the record of trial pursuru1t to RCM 1111, sealed
materials may be examined upon order issued from the militruy judge upon a showing of good cause at a
post-trial Article 39(a) session directed by the Convening Authority.
c. Reviewing and appellate authorities meeting the criteria in paragraph 3 may exrunine sealed
matters when those authorities determine that such action is reasonably necessruy to a proper fulfillment
of their responsibilities under the Uniform Code of Military Justice, the Manual for Comts-Martial,
governing directives, instructions, regulations, ru1d applicable rules of professional responsibility.
5. No person authorized to examine sealed exhibits shall photocopy, photograph, duplicate, or disclose
the contents of the sealed exhibit in the absence from an order by a military judge, the Judge Advocate
General or designee, or an appellate court, or other comt of competent jurisdiction.
ORDERED, this the 26th day of April2012.

DENISE R. LIND
COL,JA
Chief Judge, 1st Judicial Circuit

r---------.
APPELLA1E EXIDBIT L f..X IV
Page--L_ ofPage(s)

21268

DEPARTMENT OF THE ARMY
U.S. ARMY TRIAL DEFENSE SERVICE
FORT LEAVENWORTH FIELD OFFICE
FORT LEAVENWORTH, KANSAS 66027-2313

ATZL-SJA-TD

23 April 2012

1. U.S. v. Giles, 386 U.S. 66 (1967)
a. Police reports. One included interviews with the complaining witness, as well as
another key government witness. Said interviews included statements that were inconsistent
with trial testimony.
b. Case was remanded. Court did not hold that "preliminary, challenged or speculative"
information need not be disclosed.
c. No military justice cases cite the language quoted by the government.
2. Levin v. Clark, 408 F.2d 1209 (C.A. D.C. Cir. 1967)
a. Giles mentioned only in a separate statement on rehearing en bane.
b. "Where government's grand larceny case was based on testimony that defendant had
received $35,000 from union in small bills obtained at bank after defendant had refused $1,000
bills, government's failure to reveal to defense a bank officer's statement which might have
enabled defense to procure statements from bank personnel that no exchange of bills had taken
place entitled defendant to new trial."
3. Crowder v. U.S., 294 F.Supp. 291 (E.D.MI 1967)
a. Cites Giles
b. Witness indicated before trial that he would recant his story
4. Davis v. Heyd, 350 F.Supp. 958 (E.D.LA 1972)
a. Cites Giles
b. Witness statements
5. Layman v. Tollett, 357 F.Supp. 914 (E.D.TN 1972)
a. Cites Giles, but notes that the Court did not agree on an opinion
b. Prosecution notes and memoranda
6. U.S. v. Brewer, 367 F.Supp. 156 (S.D.N.Y. 1973)
a. Cites Giles
b. Witness statements
7. U.S. v. Agurs, 427 U.S. 97 (1976)
a. Background information on victim, which would have tended to support the theory
that the accused acted in self-defense.
b. Accused not deprived of fair trial because she did not request the information and it
gave no inference of perjury.
c. The Court did note: "Because we are dealing with an inevitably imprecise standard,
and because the significance of an item of evidence can seldom be predicted accurately until the
APPELLA1E EXHIBIT (..)t'\(
Page__ ofPage(s)

(.':J.5

21269

entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of
disclosure," at 108.
d. Giles appears only in a footnote.
8. U.S. v. Dansker, 449 F.Supp. 1057 (D.N.J. 1977)
a. Evidence related to witness credibility
9. U.S. v. Peltier, 553 F.Supp. 890 (D.N.D. 1983)
a. Documents reporting preliminary autopsy findings, the possible involvement and
presence of other people, and various descriptions of the vehicle the agents followed
10. Stano v. Dugger, 883 F.2d 900 (C.A. 11th Cir., 1989)
a. One officer's belief that the accused falsely confessed. Said officer's opinion differed
from the other detectives, his superiors and the state attorney.
11. U.S. v. Diaz, 922 F.2d 998 (C.A. 2d Cir., 1990)
a. Government suspected witness of theft, but did not have actual knowledge of the theft
until after the trial.
12. U.S. v. Amiel, 95 F.3d 135 (C.A. 2d Cir., 1996)
a. A discredited Government witness identified another witness as an affiliate of
organized crime. The prosecution interviewed the second witness and found nothing to support
the allegation. The Government did not tum over the interview.
13. Shaut v. Bennet, 289 F.Supp.2d 354 (W.D.NY. 2003)
a. Cites Diaz
b. Pre-sentence report, including witnesses statements
14. U.S. v. Jackson, 2006 WL 3022974 (N.D.Ohio)
a. Cites Diaz
b. Audio recording between two witnesses, which was inaudible.
15. Diaz v. Smith, 2007 WL 946196 (S.D.N.Y.)
a. Cites Augurs
b. Unconfirmed allegations against officer involved in Petitioner's case were made on
date of sentencing. Allegations were investigated, officer was arrested and Defense was
informed.
16. U.S. v. Eubanks, Bowan & Simpson, 1997 WL 401667 (S.D.N.Y.)
a. Cites Amiel
b. Three pre-trial investigations
17. U.S. v. Gotti, 171 F.R.D. 19 (E.D.N.Y. 1997)
a. Cites Amiel
�------��

2

APPElLATE EXHIBIT l,..)C,� j
Page�ofPage(s) 3,

J

21270

b. Witness affidavits
18. Cabrera v. Artus, 2008 WL 4146362 (E.D.N.Y.)
a. Cites Amiel
b. Government did not disclose information related to another crime, also featuring guns
and bicycles, that occurred after the crime for which Petitioner was convicted.
19. DeChirico v. Walker, 558 F.Supp.2d 355 (E.D.N.Y. 2008)
a. Cites Amiel
b. False report by witness that was not known until after the witness testified.
c. Case indicates that it is "arguable" whether such information is discoverable under
Amiel, though a better practice would have been to disclose. See Augur
20. U.S. v. Neeley, 308 Fed.Appx. 870 (C.A. 6th Cir., 2009)
a. Cites Amiel
b. Investigation was not disclosed
21. U.S. v. Sessa, 2011 WL 256330 (E.D.N.Y.)
a. Cites Amiel
b. Police investigation reports containing witness statements that could be used for
impeachment

3

APPELLATE EXHIBIT l.)l. )'(. \/
Page_L ofPage(s) 3--

21271
IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
)

UN ITE D ST A TES

)
)

v.

CLA SS I FIED INFORMATI ON

)
)

IDIC, U.S . Army Garrisn
o
Joint Base

Myer-H end erson

SEAL ORDER

)

MA NNING, Bradle y E., PFC

)

Hall

Fort Myer, Virginia 22211

)

D ATED:

d0? G0 d
1. A portion of AE LVII (57) (Attachment E) contains classified information as defined in MRE 505(b).
The attachment is classified at the SECRET//REL ACGU level. This portion of the exhibit will be sealed
in the record of trial in accordance with RCM 1103A, RCM 1104(b)(l)(D), and MRE 505.
2. The Court Security Officer shall cause a proper security classification to be assigned to the record of
trial, to each classified exhibit, and to each page of the record of trial in which classified information
appears, in accordance with RCM 1103(h). The Court Security Officer will ensure that the sealed
exhibits are properly marked, including an annotation on each, that the material was sealed by order of the
military judge prior to insertion into the original record of trial. Trial counsel will clearly identifY in the
record of trial where classified exhibits and pages in the record of trial will be maintained.
3. This portion of the exhibit contains classified national security infonnation. This classified
information shall be handled in a manner consistent with Executive Order 13526. An individual's access
to the classified information in this exhibit is subject to the following: having the appropriate security
clearance; signing an approved nondisclosure agreement; having a need-to-know the information; and
acknowledging the Judicial Protective Order for Classified Infonnation, dated 16 March 2012.
4. Sealed exhibits will not be opened or examined except for the following:
a.

Prior to authentication of the record by the military judge, sealed materials may be examined upon

order from the military judge based on good cause.
b.

After authentication and prior to disposition of the record of trial pursuant to RCM 1111, sealed

materials may be examined upon order issued from the military judge upon a showing of good cause at a
post-trial Article 39(a) session directed by the Convening Authority.
c.

Reviewing and appellate authorities meeting the criteria in paragraph 3 may examine sealed

matters when those authorities determine that such action is reasonably necessary to a proper fulfillment
of their responsibilities under the Uniform Code of Military Justice, the Manual for Courts-Martial,
governing directives, instructions, regulations, and applicable rules of professional responsibility.
5. No person authorized to examine sealed exhibits shall photocopy, photograph, duplicate, or disclose
the contents of the sealed exhibit in the absence from an order by a military judge, the Judge Advocate
General or designee, or an appellate court, or other court of competent jurisdiction.
ORDERED, this the 25th day of April 2012.

4L��
COL, JA

Chief Judge, I st Judicial Circuit

TE_E_XHI
_B_I_T_l..J()(
__V__,
I C":f.�)
I""'AP-PE_L_L_
. �_
__!___ ofPage(s) }

Page

I

,

21272
IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
)

UN ITE D ST A TES

)
)

v.

CLA SS I FIED INFORM ATI ON

)
M A NNING, Bradley E., PFC

)

HH C, U.S. Army

)

Garrison

SEAL ORDER

)

Joint Bas
e Myer-Henderson Hall
Fort Myer, Virginia 22211

)

D ATED:

c;9(o C'Ap!l

BCD

I�

I. A portion of AE LVII (57) (Attachments C and D) contains classified information as defined in MRE
505(b). The attachments are classified at the SECRET//NOFORN level. This portion of the exhibit will
be sealed in the record of trial in accordance with RCM 1103A, RCM 1104(b)(l)(D), and MRE 505.
2. The Court Security Officer shall cause a proper security classification to be assigned to the record of
trial, to each classified exhibit, and to each page of the record of trial in which classified information
appears, in accordance with RCM 1103(h). The Court Security Officer will ensure that the sealed
exhibits are properly marked, including an annotation on each, that the material was sealed by order of the
military judge prior to insertion into the original record of trial. Trial counsel will clearly identify in the
record of trial where classified exhibits and pages in the record of trial will be maintained.
3. This portion of the exhibit contains classified national security information. This classified
information shall be handled in a manner consistent with Executive Order 13526. An individual's access
to the classified information in this exhibit is subject to the following: having the appropriate security
clearance; signing an approved nondisclosure agreement; having a need-to-know the information; and
acknowledging the Judicial Protective Order for Classified Information, dated 16 March 2012.
4. Sealed exhibits will not be opened or examined except for the following:
a.

Prior to authentication of the record by the military judge, sealed materials may be examined upon

order from the military judge based on good cause.
b.

After authentication and prior to disposition of the record of trial pursuant to RCM 1111, sealed

materials may be examined upon order issued from the military judge upon a showing of good cause at a
post-trial Article 39(a) session directed by the Convening Authority.
c.

Reviewing and appellate authorities meeting the criteria in paragraph 3 may examine sealed

matters when those authorities determine that such action is reasonably necessary to a proper fulfillment
of their responsibilities under the Uniform Code of Military Justice, the Manual for Courts-Martial,
governing directives, instructions, regulations, and applicable rules of professional responsibility.
5. No person authorized to examine sealed exhibits shall photocopy, photograph, duplicate, or disclose
the contents of the sealed exhibit in the absence from an order by a military judge, the Judge Advocate
General or designee, or an appellate court, or other court of competent jurisdiction.
ORDERED, this the 25th day of April 2012.

COL, JA
Chief Judge, 1st Judicial Circuit
APPElLATE EXHIBIT
Page

\_ ofPage(s)

__

l.. X� VII
I

(_11)

21273

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: DEFENSE MOTION
v. TO DISIVIISS UNREASONABLE

MULTIPLICATION OF CHARGES
MANNING, Bradley E., PFC
U.S. Army,
HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall DATED: 25 April 2012
Fort Myer, Virginia 22211

Defense moves to dismiss certain charges and speci?cations based upon unreasonable
multiplication of charges (UMC). Government opposes. After considering the pleadings, the
classi?ed enclosure presented by the defense, and argument of counsel, the Court ?nds and
concludes the following:

Findings of Fact: The Government stipulates to the facts set forth in the Defense motion, with a
singular exception. The Court adopts the following relevant facts:

1. PFC Manning is charged with ?ve speci?cations of violating a lawful general regulation, one
speci?cation of aiding the enemy, one speci?cation of conduct prejudicial to good order and
discipline and service discrediting, eight speci?cations of communicating classi?ed information,
?ve speci?cations of stealing or knowingly converting government property, and two
speci?cations of knowingly exceeding authorized access to a government computer, in violation
of Articles 92, 104, and 134, Uniform Code of Military Justice (UCMJ) 10 U.S.C. 892, 904,
934 (2010). The case has been referred to a general court martial by the convening authority.

2. The Defense argues the following 4 categories of speci?cations are an UMC against PFC
Manning. The speci?cations are identi?ed in relevant part:

Category 1: Article 134 (18 U.S.C. 641) and Article 134 (18 U.S.C. 793(e))

(A) Charge II, specifications 4 and 5 involving the Combined Infonnation Data
Network Exchange Iraq database containing more than 380,000 records belonging to the
United States government:

Speci?cation 4 of Charge H: Article 134 (18 U.S.C. 641) PFC Manning did at or near
Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or
about 5 January 2010,? steal, purloin, or knowingly convert ?the Combined Information Data
Network Exchange Iraq database containing more than 380,000 records belonging to the United
States government,? in violation of 18 U.S.C. Section 641 and Article 134.

1

-.-s

I 755
OI P8805) 3 I










21274

Speci?cation 5 of Charge II: Article 134 (18 U.S.C. 793(e))- PFC Manning having
unauthorized possession of classi?ed Combined Infomiation Data Network Exchange Iraq
database records, did, at the same place speci?ed in Speci?cation 4 between on or about 31
December 2009 and on or about 9 February 2010, willfully communicate, deliver, transmit, or
cause to be communicated, delivered or transmitted, these records to a person not entitled to
receive them with reason to believe that the records could be used to the injury of the United
States or to the advantage of any foreign nation, in violation of 18 U.S.C. Section 793(e) and
Article 134.

(B) Charge H, speci?cations 6 and 7 involving the Combined Information Data
Network Exchange Afghanistan database containing more than 90,000 records belonging
to the United States government:

Speci?cation 6 of Charge II: Article 134 (18 U.S.C. 641) PFC Manning did at or near
Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or
about 8 January 2010,? steal, purloin, or knowingly convert ?the Combined Information Data
Network Exchange Afghanistan database containing more than 90,000 records belonging to the
United States govemment,? in violation of Section 641 and Article 134.

Speci?cation 7 of Charge II: Article 134 (18 U.S.C. 793(e)) - PFC Marming did having
unauthorized possession of classi?ed records contained on the Combined Information Data
Network Exchange Afghanistan database, did, at the same place speci?ed in Speci?cation 6
between on or about 31 December 2009 and on or about 9 February 2010, willfully
communicate, deliver, transmit, or cause to be communicated, delivered or transmitted, these
records to a person not entitled to receive them with reason to believe that the records could be
used to the injury of the United States or to the advantage of any foreign nation, in violation of
Section 793(e) and Article 134.

(C) Charge II, speci?cations 8 and 9 involving the United States Southern
Command database containing more than 700 records belonging to the United States
government:

Sgaeci?cation 8 of Charge II: Article 134 (18 U.S.C. 641) PFC Marming did at or near
Contingency Operating Station Hammer, Iraq, on or about 8 March 2010,? steal, purloin, or
knowingly convert ?a United States Southern Command database containing more than 700
records belonging to the United States govemment,? in violation of Section 641 and Article 134.

Speci?cation 9 of Charge II: Article 134 (18 U.S.C. 793(e)) - PFC Manning having
unauthorized possession of classi?ed records contained on the database speci?ed in
Speci?cation 8, did, at the same place speci?ed in Speci?cation 8 between on or about 8 March
2010 and on or about 27 May 2010, willfully communicate, deliver, transmit, or cause to be
communicated, delivered or transmitted, these records to a person not entitled to receive them
with reason to believe that the records could be used to the injury of the United States or to the
advantage of any foreign nation, in violation of Section 793(0) and Article 134.

.- -


. 1
APPELL.-XTE 25$?

Q.





21275

Category 2: Article 134 (18 U.S.C. 641) and 18 U.S.C. 1030(a)(l)

(A) Charge 11, speci?cations 12 and 13 involving the Department of State Net-
Centric Diplomacy database containing more than 250,000 records belonging to the United
States government:

Speci?cation 12 of Charge II: Article 134 (18 U.S.C. 703(e)) - PFC Manning did at or near
Contingency Operating Station Hammer, Iraq, between on or about 28 March 2010 and on or
about 4 May 2010,? steal, purloin, or knowingly convert ?the Department of State Net?Centric
Diplomacy database containing more than 250,000 records belonging to the United States
government,? in violation of Section 641 and Article 134.

Sieci?cation 13 of Charge II: Article 134 (18 U.S.C. 1030(a)( - PFC Manning, at the same
place speci?ed in Speci?cation 12 between on or about 28 March 2010 and on or about 27 May
2010, knowingly exceeded his authorized access on a Secret Internet Protocol Router computer,
obtained classi?ed Department of State cables determined to require protec?on against
unauthorized disclosure, and willfully communicated, delivered, transmitted, or caused to be
communicated, delivered, or transmitted, these cables to a person not entitled to receive them
with reason to believe that these cables so obtained could be used to the injury of the United
States, in violation of 18 U.S.C. Section 1030(a)(l) and Article 134.

Category 3: Charges Occurring in a single transaction on the same day:
(A) Charge II, specifications 4, 5, 6, and 7.
(B) Charge II, specifications 10 and 11 (18 U.S.C. 793(e)).

Speci?cation 10 of Charge II: Article 134 (18 U.S.C. 793(e)) - PFC Marming, having
unauthorized possession of classi?ed records relating to a military operation in Farah Province,
Afghanistan occurring on or about 4 May 2009, did, ?at or near Contingency Operating Station
Hammer, Iraq, between on or about 1 1 April 2010 and on or about 27 May 2010,? willfully
communicate, deliver, transmit, or cause to be communicated, delivered or transmitted, these
records to a person not entitled to receive them with reason to believe that the records could be
used to the injury of the United States or to the advantage of any foreign nation, in violation of
Section 793(e) and Article 134.

Smzci?cation 11 of Charge II: Article 134 (18 U.S.C. 793(e)) - PFC Manning, having
unauthorized possession of a ?le containing a video relating to the national defense, did, ?at or
near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and
on or about 8 January 2010,? willfully communicate, deliver, transmit, or cause to be
communicated, delivered or transmitted, this file to a person not entitled to receive it with reason
to believe that the ?le could be used to the injury of the United States or to the advantage of any
foreign nation, in violation of Section 793(e) and Article 134.

The Law:

APPELLATE
Page of Pagetsl

21276

1. RCM 307(c)(4) states that ?[w]hat is substantially one transaction should not be made the
basis for an unreasonable multiplication of charges against one person.?' The central tenet of the
doctrine is to ?promote fairness considerations separate from an analysis of the statutes, their
elements, and the intent of Congress.? United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001), discussing United States, v. Teters, 37 M.J. 370 (CMA l993).

2. The Court of Appeals for the Anned Forces in US. v. Campbell, 71 M.J. 19 (C.A.A.F. 2012)
endorsed the following non-exclusive factors, commonly known as Quiroz factors, as a guide for
military judges to consider when the defense objects that the Govemment has Lmreasonably
multiplied the charges:

(1) whether each charge and speci?cation aimed at separate criminal acts?

(2) whether the number of charges and speci?cations misrepresent or exaggerate the
accused?s criminality?

(3) whether the number of charges and specifications unfairly increase the appellant?s
punitive exposure?

(4) Whether there any evidence of prosecutorial overreaching or abuse in the drafting of
the charges?

None of the factors are pre-requisites. One or more factors may be sufficient to establish an
UMC based on prosecutorial over-reaching. A singular act may implicate multiple and
significant criminal law interests, none necessarily dependent upon the other. UMC may apply
differently to ?ndings than to sentencing. A charging scheme may not implicate the Quiroz
factors in the same way that sentencing exposure does. In such a case, the nature of the harm
requires a remedy that focuses more appropriately on punishment than ?ndings. Campbell, 71
M.J. 23, 24.

3. The Court must, therefore scrutinize the prosecutor?s charging determinations as ?the
prohibition against unreasonable multiplication of charges addresses those features of military
law that increase the potential for overreaching in the exercise of prosecutorial discretion.? Id.
The application of the Quiroz factors, at bottom, involves a ?reasonableness determination, much
like sentence appropriateness.? United States v. Anderson, 68 M.J. 378, 386 (C.A.A.F. 2010).

4. Where a trial court ?nds an unreasonable multiplication of charges, dismissal of the
multiplied charges is an available remedy. United States v. Roderick, 62 M.J. 425, 433
(C.A.A.F. 2006). Consolidation of the unreasonably multiplied charges is also a remedy
available to the trial court. United States v. Gilchrist, 61 M.J. 785, 789 (A. Ct. Crirn. App.
2005).

ANALYSIS:

Category I: The 18 U.S.C. 641 and 18 U.S.C. 793(e) Speci?cations

However, the RCM are not so in?exible as to fail to recognize that situations may arise ?When sufficient doubt as
to the facts or the law exists to warrant making one transaction the basis for charging two or more offenses.? See
discussion to RCM 307(c)(4).

4

5
Page oIPage(Sl 7-

21277

(Speci?cations Charge II)

1. The 18 U.S.C. 641 and 18 U.S.C. 793(e) speci?cations address separate
criminal acts. The 18 U.S.C. 641 offenses are aimed at the theft of government property, in the
present case records contained in govemment-owned databases, while the gravamen of the 18
U.S.C. 793(e) offenses is the transmittal of national defense information to unauthorized
persons. The distinct nature of the paired speci?cations is illustrated by comparing the elements
of the offenses. See US. v.Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004) (referring to the court?s
multiplicity analysis in deciding that the speci?cations at issue were aimed at separate
criminal acts; charging the forgery of 16 cheeks and four indorsements in two speci?cations
were aimed at as a fair and reasonable exercise of prosecutorial discretion). In order to prove the
accused violated 18 U.S.C. ?641 Speci?cations 4, 6, and 8 the United States must establish
that the accused stole, purloined, or knowingly converted United States Government property. In
order to prove the accused violated 18 U.S.C. ?793(e) Speci?cations 5, 7, and 9 the United
States must establish that the accused communicated, delivered, or transmitted national defense
information to a person not entitled to receive it. The Defense argument that each violation of 18
U.S.C. 641 was simply the ??rst step? in a violation of 18 U.S.C. 793(e) has been discounted
by the appellate comts in the context of larceny and false claims convictions United States v.
Chatman, 2003 WL 25945959 (A. Ct. Crirn. App. June 13, 2003) (unpublished) (noting that the
speci?c intent to deprive the United States of its military property is a mens rea urmecessary for
the Article 132 offenses). See also Campbell (recognizing that a singular act may implicate
multiple and signi?cant criminal interests not dependent on the others). Each speci?cation
alleging a violation of 18 U.S.C. 641 is directed at misconduct wholly independent of its paired
speci?cation alleging a violation of 18 U.S.C. 793(e). As in Campbell, in this case, the crime
of theft of government records can be complete whether or not the accused willfully
?communicated. the records to persons not entitled to receive them.

2. The number of charges and speci?cations do not misrepresent or exaggerate the aecused?s
criminality. A facial analysis of the charge sheet shows that Speci?cations 4, 6, 8, and 12 of
Charge II allege a theft of government property from four different databases (the Combined
Infomiation Data Network Exchange Iraq database, the Combine Information Data Network
Exchange Afghanistan database, a United States Southern Command database, and the
Department of State Net-Centric Diplomacy database). Moreover, the volume of records alleged
to have been stolen augers in favor of the Government (more than 380,000 records; more than
90,000 records; more than 700 records; more than 250,000 records).

3. The number of charges and speci?cations do not unfairly increase the accused?s punitive
exposure as an UMC for ?ndings. Charging the accused with knowingly giving intelligence to
the enemy, delivering national defense information to those unauthorized to receive it, theft of
government property, and conduct prejudicial to good order and discipline, based on the
aecused?s posting of classi?ed information to a publicly accessible website, totaling hundreds of
thousands of records, over the span of several months, is not an unreasonable multiplication of
charges. The Article 104 offense has a maximum punishment of life con?nement without the
eligibility for parole. The Government could have broken up the single speci?cation into
multiple speci?cations based on speci?c Internet postings. See Campbell, 71 at 25. The




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maximum possible punishment for a conviction under either 18 U.S.C. 641 or 18 U.S.C.
793(e) is ten years incarceration for each speci?cation. Therefore, dismissal of Speci?cations 4,
6, and 8 would reduce the accused?s punitive exposure by 30 years. In this case, considering the
alleged volume of government and classi?ed records involved, the accused?s punitive exposure
has not been unfairly increased for purposes of UMC for ?ndings. See United States v.
Anderson, 68 M.J. 378, 386 (C.A.A.F. 2010).

4. There is no evidence of prosecutorial overreaching or abuse in the drafting of charges. The
Defense points to the charge sheet to support its contention that the government is ?pil[ing_] on
the charges against PFC Manning in order to increase the likelihood of a severe sentence if he is
convicted.? Def. Mot. at 7. As the Court has already found, the charges are distinct in nature
and proof and involve voluminous Government records. The Defense argues the Government
has pushed 18 U.S.C. 641 ?to the edge of its permissible application? as it relates to national
defense information, relying on the separate view expressed by Judge Winter in United States v.
Truong Dinh Hung, 629 F.2d 908 Cir. 1980). This argument has been rejected by the
Second, Fourth, and Sixth Circuits. United States v. Girard, 601 F.2d 69, 70~71 (2nd Cir. 1979);
United States v. Fowler, 932 .2d 306 Cir. 1991); United States v. Jeter, 775 F.2d 670, 680-
82 (6th Cir. 1985). Even if the Government mischarged the accused with violations of 18
U.S.C. 641, no relief would be warranted under the theory that the government engaged in
UMC.

S. The Government has conceded that the transmissions in speci?cations 5 and 7 were one
transmission, although of voluminous records. The Court will leave those speci?cations as
separate charges until after ?ndings are announced. The Defense may make a motion to merge
the speci?cations for ?ndings at that time.

Category II: 18 U.S.C. 641 and 18 U.S.C. l030(a)(l)
(Speci?cations 12 13 of Charge II)

1. The 18 U.S.C. 641 and 18 U.S.C. l030(a)(1) speci?cations encompass separate
criminal acts. The 18 U.S.C. 641 o?ense is aimed at the theft of government property, in the
present case records contained in govemment-owned databases, while the 18 U.S.C. 1030(a)(l)
offense requires the transmittal of classi?ed information to unauthorized persons. The same
rationale of paragraph (1) in Category 1 also applies to these offenses. The speci?ca?on alleging
a violation of 18 U.S.C. 641 is directed at misconduct wholly independent of its paired
speci?cation alleging a violation of 18 U.S.C. 1030(a)(1).

2. The number of charges and speci?cations do not misrepresent or exaggerate the accused?s
criminality. A singular act may implicate multiple and signi?cant criminal law interests, none
necessarily dependent upon the other. In this case, the crime of theft of government records can
be complete whether or not the accused willfully ?communicated. . the records to
persons not entitled to receive them. The decision by the Government to charge the accused with
theft of government property and exceeding authorized access on a computer and with
transmitting classi?ed information is a reasonable exercise of prosecutorial discretion.






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3. The Court ?nds the nmnber of charges and speci?cations do not unfairly increase the
accused?s punitive exposure for purposes of UMC for fmdings. Charging the accused with
knowingly giving intelligence to the enemy, delivering national defense information to those
unauthorized to receive it, theft of government property, and conduct prejudicial to good order
and discipline, based on the accused?s posting of classi?ed information to a publicly accessible
website, totaling hundreds of thousands of records, over the span of several months, is not an
tmreasonable multiplication of charges. The Article 104 offense has a maximum punishment of
life con?nement without the eligibility for parole. The Government could have broken up the
single speci?cation into multiple speci?cations based on speci?c Internet postings. Dismissal of
Speci?cation 12 would reduce the accused?s punitive exposure by 10 years. Based on all of the
above, the accused?s punitive exposure has not been unfairly increased for purposes of UMC for
?ndings. See United States v. Anderson, 68 M.J. 378, 386 (C.A.A.F. 2010).

4. There is no evidence of prosecutorial overreaching or abuse in the drafting of charges for the
reasons set forth in paragraphs 1 3 above.

Category 3: Speci?cations Directed at Conduct That Occurred on the Same Day
(Speci?cations 4, 5, 6 7 of Charge II)
(Speci?cations 10 ll of Charge II)

1. The Defense concedes there is a factual dispute whether the conduct in speci?cations 10 and
11 of Charge occurred on the same day or not.

2. The parties dispute whether the conduct at issue in speci?cations 4, 5, 6, and 7 of Charge
occurred on the same or separate days. Whether the enumerated speci?cations are directed at
conduct that occurred on one day or different days is a factual matter that should be determined
by the fact-?nder after the close of the evidence. The Defense may re-raise this UMC motion
after ?ndings have been armounced.

RULING: The Defense Motion to Dismiss Based on Unreasonable Multiplication of Charges
for Findings is DENIED.

The Defense may re-raise the Motion to Dismiss for UMC for Findings and/or Sentence after
armouncement of the ?ndings.

So ORDERED this 25"? day ofApril 2012.



DENISE R. LIND
COL, JA
Chief Judge, 1? Judicial Circuit


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21280

KEY PROVISIONS FROM AR 380-5
Section VII
Corrective Actions and Sanctions
1-20. General

Commanders will establish procedures to make sure that prompt and appropriate action is taken
concerning a violation of the provisions of this regulation, especially in those cases involving incidents
which can put classified information at risk of compromise, unauthorized disclosure, or improper
classification of information. Such actions will focus on a correction or elimination of the conditions that
caused or contributed to the incident.
1-21. Sanctions
a.

DA personnel will be subject to sanctions if they knowingly, willfully, or negligently­

(!) Disclose classified or sensitive information to unauthorized persons.

(2) Classify or continue the classification of information in violation of this regulation.
(3) Violate any other provision of this regulation.
b. Sanctions can include, but are not limited to warning, reprimand, suspension without pay, forfeiture of

pay, removal, discharge, loss or denial of access to classified information, and removal of original
classification authority. Action can also be taken under the Uniform Code of Military Justice (UCMJ) for
violations of that Code and under applicable criminal law, if warranted.
Original classification authority will be withdrawn for individuals who demonstrate a disregard or
pattern of error in applying the classification and sensitivity standards of this regulation.

c.

Section V
Sensitive Information (Computer Security Act of 1987)
5-19. Description

The Computer Security Act of 1987 established requirements for protection of certain information in
federal government Automated Information Systems (AIS). This information is referred to as "sensitive"
information, defined in the Act as: "Any information, the loss, misuse, or unauthorized access to or
modification of which could adversely affect the national interest or the conduct of federal programs, or
the privacy to which individuals are entitled under section 552a of Title 5, USC (the Privacy Act), but
which has not been specifically authorized under criteria established by anExecutive Order or an Act of
Congress to be kept secret in the interest of national defense or foreign policy."

a.

b. Two aspects of this definition deserve attention. First, the Computer Security Act of 1987 applies only

to unclassified information which deserves protection. Second, unlike most other programs for protection
of information, the Computer Security Act of 1987 is concerned with protecting the availability and
integrity, as well as, the confidentiality of information. Much of the information which fits the Computer
Security Act of 1987's definition of "sensitive" falls within the other categories of information discussed
in this chapter.

3.0. Definitions
3.1. "Caveated" information is information subject to one of the authorized control markings under
section 9.

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3.2. Intelligence Community (and agencies within the Intelligence Community) refers to the United

States Government agencies and organizations and activities identified in section 3 of the National
Security Act of 1947, as amended, 50 USC 401a(4), and section 3.4(f) (1 through 6) ofExecutive Order
12333.
3.3. Intelligence information and related materials (hereinafter referred to as "Intelligence") include the

following information, whether written or in any other medium, classified pursuant toEO 12958 or any
predecessor or successorExecutive Order.

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21282

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
U N I TE D S T A TE S

)
)

RULING: DEFENSE MOTION

)

TO DISMISS SPECIFIC ATION 1

)

OF CH ARGE II FOR F AILURE

M ANNING, Bradley E., PFC

)

TO STATE AN OFFENSE

U.S. Army, (b) (6)

)

Headquarters and Headquarters Company,

)

U.S. Army Garrison, Joint Base Myer­

)

Henderson Hall, Fort Myer, VA 22211

)

v.

DATED:

25 April 2012

Defense moves the Court to dismiss Specification 1 of Charge II for failure to state a
cognizable offense under Article 134 because it is preempted by Article 134, or, in the
alternative, that the specification must be charged as a violation of Article 92. Government
opposes. After considering the pleadings, evidence presented, and argument of counsel, the
Court finds and concludes the following:
Factual Findings:

1. Specification 1 of Charge I alleges that PFC Manning "between on or about 1 November
2009 and on or about 27 May 2010, without proper authority knowingly gave intelligence to the
enemy, through indirect means" in violation of Article 104, UCMJ.
2. Specification 1 of Charge II, alleges that PFC Mmming"wrongfully and wantonly caused to
be published on the internet intelligence belonging to the United States government, having
knowledge that intelligence published on the internet is accessible to the enemy, 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" in violation of Article 134, UCMJ.
3. At the time of PFC Mmming's alleged unlawful actions, Army Regulation 380-5 (Department
of the Army Information Security Program) was in effect. The regulation is a punitive lawful
general order per paragraph 1-21 which states the following:
1-21. Sanctions
a.

DA personnel will be subject to sanctions if they knowingly, willfully, or negligently­
(1) Disclose classified or sensitive information to unauthorized persons.
(2) Classify or continue the classification of information in violation of this

regulation.
(3) Violate any other provision of this regulation.
b. Sanctions can include, but are not limited to warning, reprimand, suspension without

pay, forfeiture of pay, removal, discharge, loss or denial of access to classified information, and
removal of original classification authority. Action cm1 also be taken under the Uniform Code of
Military Justice for violations of that Code and under applicable criminal law, if warranted. .

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4. AR 380-5 defines classified information as"information and material that has been
determined, pursuant to EO 12958 or any predecessor order, to require protection against
unauthorized disclosure and is marked to indicate its classified status when in documentary and
readable form. Sensitive information but unclassified information is defined as"information
originated from within the Department of State which warrants a degree of protection and
administrative control and meets the criteria for exemption from mandatory public disclosure
under the Freedom oflnformation Act." Sensitive Compartmentalized Information is defined as
"classified information concerning or derived from intelligence sources, methods, or analytical
processes, which is r� quired to be handled within formal access control systems established by
the Director of Central Intelligence.
5. Intelligence is defined under Article 104c(4) as information that may be useful to the enemy
for any of the many reasons that make information valuable to belligerents.

Intelligence imports

that the information conveyed is true or implies the truth, at least in part.
The Law

-

Preemption:

1. The preemption doctrine is explained in paragraph 60(c)(5)(a) of the Manual for Courts­
Martial (MCM), which provides, in pertinent part:
The preemption doctrine prohibits application of Article 134 to conduct covered
by Articles 80 through 132, For example, larceny is covered in Article 121, and if
an element of that offense is lacking - for example, intent - there can be no
larceny or larceny-type offense, either under Article 121 or, because of
preemption, under Article 134. Article 134 cannot be used to create a new kind of
larceny offense, one without the required intent, where Congress has already set
the minimum requirements for such an offense in Article 121.
MCM, para. 60(c)(5)(a).
2. In United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979), the then Court of Military Appeals
(CoMA) stated that the doctrine of preemption is defined as"the legal concept that where
Congress has occupied the field of a given type of misconduct by addressing it in one of the
specific punitive articles of the code, another offense may not be created and punished under
Article 134, UCMJ, simply by deleting a vital element." The CoMA also stated,"However,
simply because the offense charged under Article 134, UCMJ, embraces all but one element of
an offense under another article does not trigger the preemption doctrine. !d.
3. Military appellate courts apply a two-pronged test to determine whether an Article 134 charge
is preempted by another Article.

Both prongs must be met for preemption to apply.

First, it

must be established that Congress "indicate[d] through direct legislative language or express
legislative history that particular actions or facts are limited to the express language of an
enumerated article, and may not be charged under Article 134, UCMJ." United States
Anderson, 68 M.J. 378, 387 (C.A.A.F. 2010); see Kick, 7 M.J. at 85; United States

v.

v.

Wright, 5

M.J. 106, 110-11 (C.M.A. 1978). Second, it must be shown that the offense charged under

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21284

Article 134 is composed of a "residuum of elements" of an enumerated offense under the UCMJ.
Wright, 5 M.J. at 111;

4. Military courts are "extremely reluctant to conclude that Congress intended [] provisions to
preempt [an] offense. . . in the absence of a clear showing of a contrary intent." The fact that an
Article 134 offense embraces all but one element of an offense under an enumerated article does
not trigger the preemption doctrine.

See Kick, 7 M.J. at 85.

5. The issue of whether Congress indicated through direct legislative language or express
legislative history that Article 104 cover a class of offenses in a complete way addressed by the
Comi of Appeals for the Armed Forces (CAAF) in Anderson. In that case the Government
charged the accuswed with violating Articles 80 and 104, UCMJ by knowingly giving
intelligence to the enemy and two specifications of attempting to communicate with the enemy.
The accused was also charge with violating Article 134, UCMJ, by wrongfully and dishonorably
providing information on U.S. Army troop movements to persons whom the accused thought
were Tari q Hamdi and Moh ammed, members of the al Qaida terrorist network, such conduct
being prejudicial to good order and discipline in the armed forces, and of a nature to bring
discredit upon the armed forces. CAAF applied the two-part preemption test and concluded
Article 104 did not preempt an Article 134 offense for distributing sensitive material to
individuals not authorized to receive it. First, the CAAF concluded that"the legislative history
of Article 104 does not clearly indicate that Congress intended for offenses similar to those at
issue [i.e., the distribution of sensitive material to individuals not authorized to receive it] to only
be punishable under Article 104 to the exclusion of Article 134." Therefore, the CAAF
concluded that the Article 104 and Article 134 offenses may encompass parallel facts but the
charged offenses are directed at distinct conduct.
Analysis: Preemption

1.

Despite the Defense's attempt to distinguish this case from Anderson, the facts of Anderson

are sufficiently similar to prove controlling. The CAAF in Anderson concluded Article 104 did
not preempt an Article 134 offense for distributing sensitive material to individuals not
authorized to receive it. The accused in Anderson provided undercover FBI agents, posing as al
Qaeda operatives, computer diskettes containing classified information on the vulnerabilities of
military operations. The accused was convicted of attempting to give intelligence to the enemy,
attempting to aid the enemy, and conduct prejudicial to good order and discipline.
2. In applying the two-pati preemption test in this case, the Court finds that the charged offense
of Article 134, UCMJ, in Specification 1 of Charge II, is not preempted by Article 104, UCMJ.
Prong 1 of the 2 part test is not met. There is no direct legislative language or express legislative
history to show that Congress demonstrated its intent that Article 104"to cover a class of
offenses in a complete way."
3. In applying prong 2 of the test, the charged Article 134 offense is not composed of a residuum
of elements of the A1iicle 104 offense. Each offense requires a different mens rea. The Article
134 offense requires that the accused"wantonly" caused to be published intelligence belonging
to the United States government on the Internet. The Article 104 offense requires the

3

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21285

Govenunent to prove the accused "knowingly" gave intelligence to the enemy and that the
enemy received it. The Article 134 offense requires the Government to show that the accused
"wantonly" published intelligence on the internet knowing that such intelligence is accessible to
the enemy. "Wanton" is not a residuum of"knowing".

The Article 134 offense punishes the

wanton publication of intelligence on the internet not giving intelligence to the enemy.
4. Article 104 does not preempt the Article 134 offense charged in specification 1 of Charge II.
The Law - Article 92:

1. Article 134, UCMJ, provides in full as follows:
Though not specifically mentioned in this chapter, all disorders and neglects to
the prejudice of good order and discipline in the armed forces, all conduct of a
nature to bring discredit upon the armed forces, and crimes and offenses not
capital, of which persons subject to this chapter may be guilty, shall be taken
cognizance of by a general, special, or summary court-martial, according to the
nature and degree of the offense, and shall be punished at the discretion of that
court.
2. Violations of customs of the service that are made punishable in punitive regulations should
be charged under Article 92 as violations of the regulations in which they appear. No custom
may be contrary to existing law or regulation. Explanation to Article 134, Part IV, paragraph 60,
c(2)(B).
3. Article 92, UCMJ, provides for punishment of any person subject to the UCMJ who"(1)
violates or fails to obey any lawful general order or regulation; (2) having knowledge of any
other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to
obey the order; or (3) is derelict in the performance of his duties[.]" Id.
4. In United States

v.

§ 892

Borunda, 67 M.J. 607 (AF. Ct. Crim. App. 2009), the Air Force Court of

Criminal Appeals (AFCCA) stated that possession of drug paraphernalia must be charged under
Article 92 rather than Article 134 where a punitive regulation proscribes the conduct. Citing
United States

v.

Caballero, 49 C.M.R. 594 (C.M.A. 1975), AFCCA upheld the use of Article 134

to prosecute the appellant for possession of drug paraphernalia where no lawful general order or
regulation proscribed such possession, concluding that"in the absence of a lawful general order
or regulation, charging officials are at liberty to charge the possession of drug paraphernalia as a
violation of Article 92(3), UCMJ, or Aliicle 134, UCMJ."
Analysis:

1. If AR 380-5, paragraph 1-21 is not punitive, then there is no issue whether specification 1 of
Charge II is properly charged under Article 92 or 134. The Court assumes for the purposes of
this motion that AR 380-5, paragraph 1-21 is punitive.

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21286

2. Specification 1 of Charge II, charges the accused with wrongfully and wantonly causing to be
published on the internet intelligence belonging to the United States government, having
knowledge that intelligence published on the internet is accessible to the enemy, such
intelligence being prejudicial to good order and discipline and of a nature to bring discredit upon
the armed force. The conduct at issue in specification charged Article 134 offense is distinct
from an Article 92 offense under AR 380-5, para. 1-21a. AR 380-5 punishes knowing, willful,
or negligent disclosure of classified or sensitive information to unauthorized persons. It does not
punish the"wanton" conduct charged in specification 1 of Charge II and intelligence
encompasses more than classified and sensitive information.
3. The question in this case is whether the existence of a punitive regulation governing
information security that punishes knowing, willful, and negligent disclosures of classified
information to unauthorized persons precludes the Government from charging an offense under
Article 134 that includes a wanton mens rea, adds an additional element not included in the AR
380-5 offense, that the accused knew that intelligence published on the internet is accessible to
the enemy, and punishes the distribution of"intelligence" which includes information that does
not fall within AR 380-5, where the conduct charged under Article 134 is prejudicial to good
order and discipline in the armed forces or service discrediting.
4. The Court finds that the fact that there is a punitive regulation governing the Army
Information Security Program, AR 380-5, that does not proscribe the conduct charged in
specification 1 of Charge II, wrongful and wanton publication of intelligence on the internet
knowing that such intelligence is accessible to the enemy, where such conduct is prejudicial to
good order and discipline or service discrediting does not preclude the charge under Article 134.
This case is distinct from Borunda, as that case addressed an Article 134 specification where the
offense charged was specifically proscribed in a punitive regulation.

Because the conduct

charged in specification 1 of Charge II is not specifically proscribed by AR 380-5, the
Govermnent is "at legal liberty to charge the offense as a violation of Article 92(3) or Article
134." Borunda, 67 M.J. at 609-10.
RULING: The Defense Motion to dismiss Specification 1 of Charge II for preemption and

failure to state a cognizable offense under Article 134 is DENIED.
So ORDERED: this 25th day of April 2012.

ff/-/;/
DENISE R. LIND
COL, JA

Chief Judge, 1st Judicial Circuit

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21287

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
RULING: DEFENSE MOTION
v. TO DISMISS FOR FAILURE TO
STATE AN OFFENSE
MANNING, Bradley E., PFC
US- Army. 2
HHC, US. Army Garrison
Joint Base Myer-Henderson Hall DATED: 26 April 2012
Fort Myer, Virginia 22211

Defense moves this Court to dismiss the Speci?cation of Charge I for failure to state an
o??ense. Alternatively, Defense moves to dismiss the Speci?cation of Charge I because the
inclusion of the term ?indirectly? in Article 104, UCMJ, renders that provision unconstitutionally
vague and substantially overbroad. Government opposes. The Government moves the Court to
adopt the instructions for Article 104(2) (Giving Intelligence to the Enemy) in Department of the
Army Pamphlet, 27-9, Military Judge ?s Benchbook (Benchbook). After considering the
pleadings, evidence presented, and argument of counsel, the Court ?nds and concludes the
following:

Factual Findings:

1. The Government provided particulars regarding the speci?cation of Charge I in response to
the Defense question, ?How did PFC Marming knowingly give intelligence to the enemy?? The
Government responded Marming knowingly gave intelligence to the enemy by
transmitting certain intelligence, speci?ed in a separate classi?ed docmnent, to the enemy
through the WikiLeaks website.?

2. In the speci?cation of Charge 1, the accused is charged with Giving Intelligence to the Enemy
in violation of Article 104(2). The speci?cation alleges that between on or about 1 November
2009 and on or about 27 May 2010, PFC Marming, without proper authority, knowingly gave
intelligence to the enemy through indirect means. The speci?cation follows the model
speci?cation in the Manual for Courts Martial (MCM) Part IV, paragraph 28(f)(3)(Article 104-
Aiding the Enemy Giving Intelligence to the Enemy).

The Law: Article 104

1. Article 104(2) makes it a crime for ?any person who, without proper authority, knowingly
harbors or protects or gives intelligence to or communicates or corresponds with or holds any
intercourse with the enemy, either directly or indirectly.?

2. Article 104b(4) provides the following elements for the offense of Giving Intelligence to the
Enemy:


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21288

(a) that the accused,without proper authority,knowingly gave intelligence information
to the enemy, and;
(b) that the intelligence information was true or implied the truth,at least in part.
In addition, MCM Part IV,Paragraph 28b(5)(a)-(c) provide the following explanation:
(a) Nature of offense: Giving intelligence to the enemy is a particular case of
corresponding with the enemy made more serious by the fact that the communication contains
intelligence that may be useful to the enemy for any of the many reasons that make information
valuable to belligerents. This intelligence may be conveyed by direct or indirect means.
(b) Intelligence: "Intelligence" imports that the information conveyed is true or implies
the truth,at least in part.
(c) Knowledge: Actual knowledge is required but may be proved by circumstantial
evidence.
3. Giving Intelligence to the Enemy under Article 104(2) requires actual knowledge by the
accused that he was giving intelligence to the enemy. MCM,Paragraph 28c(5(c)). This is true
whether the giving of intelligence is by direct or indirect means. A person cannot violate Article
104 by acting inadvertently,accidentally,or negligently. US. v. Olson, 20 C.M.R. 461 (A.B. R.
1955).
4. The Military Judge's Benchbook provides instructions for Article 1 04(2)(3-28-4). Those
instructions do not include instructions defining "knowledge" or"indirect means".
The Law: Failure to State an Offense.

The military is a notice pleading jurisdiction. A charge and its specification is sufficient if it ( 1)
contains the elements of the offense charged and fairly informs an accused of the charge against
which he must defend; and (2) enables the accused to plead an acquittal or conviction in bar of
future prosecutions for the same offense. US. v. Fosler, 70 M.J. 225 ( C. A.A.F. 2011). A
motion to dismiss for failure to state an offense is a challenge to the adequacy of a specification
and whether the specification '"alleges,either expressly or by implication,every element of the
offense,so as to give the accused notice and protection against double jeopardy."' United States
v.

Amazaki, 67 M.J. 666,669,670 n.8 ( A. Ct. Crim. App. 2009) (quoting United States

v.

Crafter, 64 M.J. 209,211 (C.A.A.F. 2006)).
The Law: Void for Vagueness.

1. A motion to dismiss a specification as being"void for vagueness" implicates the Due Process
clause of the Fifth Amendment. To overcome a"void for vagueness challenge",a statute must
be reasonably clear so as to provide warning of the type of conduct which is proscribed and
provide standards sufficiently explicit to prevent arbitrary and capricious application. A statute

2

21289

is impermissibly vague if it "(1) fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits; or (2) authorizes or even encourages
1
arbitrary and discriminatory enforcement." US. v. Shrader, 2012 WL 1111654 (4 h Circuit,4
April 2012) quoting Hil v. Colorado, 530 U. S. 703,732 (2000); US. v. Amazaki, 67 M.J.666
( Army Ct. Crim. App. 2009). "[T]he more important aspect of vagueness doctrine is not actual
notice,but the other principal element of the doctrine-the requirement that a legislature establish
minimal guidelines to govern law enforcement." Courts also consider any judicial or
administrative limiting construction of a criminal statute in determining whether it is
unconstitutionally vague. Kolendar v. Lawson, 461 U.S. 352, 355,357,358 (1983).
2.

A"knowing" scienter requirement mitigates a law's vagueness especially with respect to
d
actual notice of the conduct proscribed. US. v. Moyer, 2012 WL 639277 (3r Cir. 2012).
The Law: Substantiall y Overbroad.

1.

A statute is facially overbroad when no set of circumstances exists under which it would be

valid. United States v. Salerno, 481 U.S. 739, 745 (1987). The Defense does not challege Article
104(2) as facially overbroad.
2. In the First Amendment context,a statute is"overbroad" when a substantial number of its
applications are unconstitutional when compared with the statute's plainly legitimate sweep.
US. v. Stevens, 130 S. Ct. 1577 (2010).
Conclusions of Law: Failure to State an offense.

1. The general intent required by Article 104 is knowledge. This general intent is alleged in the
specification.
2. Knowledge is a recognized mens rea to provide an evil state of mind. US. v. Morrisette, 342
U.S. 246 (1952) (holding that"mere omission from 18 U.S.C. 641 of any mention of intent will
not be construed as eliminating that element from the crimes denounced" and distinguishing
between crimes requiring guilty knowledge/mens rea from strict liability offenses).
3. The Defense in paragraph 13 of its brief argues"knowing" is an insufficient mens rea and
states that"It is clear that in order to state an offense under Article 104(2) the Government must
allege that PFC Manning intended to give intelligence to the enemy." "Knowingly" is an evil
mind mens rea. Article 104(2) does not require a specific intent or motive to give intelligence to
the enemy.
4. The Government bill of particulars response to the question"How did PFC Manning
knowingly give intelligence to the enemy?" that"PFC Manning knowingly gave intelligence to
the enemy by transmitting certain intelligence,specified in a separate classified document,to the
enemy through the WikiLeaks website." does not impact on whether the specification states an
offense. The Bill of Particulars response states that the Government is prepared to prove the
accused had actual knowledge he was giving intelligence to the enemy.

3

21290

5. The specification of Charge I includes all of the elements of the offense,fairly informs the
accused of the charge against which he must defend, and protects the accused against double
jeopardy.
6. The specification of Charge I states an offense.
7. That said,the Government requests the Court to adopt the instructions for Article 104(2)
Giving Intelligence to the Enemy that are in the Military Judge's Benchbook. The Court will
give the instructions in the Benchbook but notes that there is no"knowledge" instruction or
instruction of what is meant by"indirect means". The Court proposes to give a knowledge
instruction along the lines of the following:
"Knowingly means Giving Intelligence to the Enemy under Article 104(2) requires actual
knowledge by the accused that he was giving intelligence to the enemy. This is true whether the
giving of intelligence is by direct or indirect means. A person cannot violate Article 104 by
acting inadvertently, accidentally,or negligently." See M CM,Paragraph 28c(5)(c)). US. v.

Olson, 20 C.M. R. 461 ( A. B. R. 1955).
The Court proposes to give an instruction on "indirect means" along the lines of the following:
"Indirect means" means that the accused knowingly gave the intelligence to the enemy through a
rd
3 party or in some other indirect way. The accused must actually know that by giving the
intelligence to the 3rd party that he was giving intelligence to the enemy through this indirect
means."
The Comi invites the parties to propose"knowledge" and"indirect means" instructions.
Conclusions of Law: Void for Vagueness- Term Indirectl y.
I.

The offense of aiding the enemy is not a new or novel offense. United States v. Olson, 22

C.M. R. 250,256,( C.M.A. 1957) ("The offense of aiding . . . the enemy or . . . giving . . . him
intelligence is almost as old as warfare itself, and traces of what is clearly the conceptual
forefather of . . . Article 104 of the Code may be found in the earliest of recorded military
codes." ); US. v. Batchelor, 22 C.M. R. 144 (1956) (aiding the enemy has been an offense in
every military code since The American Articles of War in 1775).
2. The Defense argues that the Government's theory is that no criminal intent is required and
that a person can violate Aliicle 104(2) by disclosing information on the internet that might be
accessible to the enemy. This is not consistent with the Government response in its Bill of
Particulars.
3. The term"indirect means" describes the means by which a person knowingly gives
intelligence to the enemy. The actual knowledge mens rea is the sarhe whether the means of
giving the intelligence is direct or indirect. The hypotheticals posed by the defense do not
·violate Article 104(2) because the person did not have actual knowledge that he/she was giving
intelligence to the enemy by indirect means.

4

21291

4. A Soldier of ordinary intelligence would be on notice that transmitting intelligence specified
in a classified document to a website, without authority, with actual knowledge that the enemy
used that website is prohibited conduct.

The elements that the accused was acting without

authority and the mens rea requirement of actual knowledge by the accused that he or she is
giving intelligence to the enemy,does not encourage arbitrary and discriminatory enforcement of
the statute.
5. The specification of Charge I (Giving Intelligence to the Enemy by Indirect Means) is not
unconstitutionally vague. The Court will give instructions defining "actual knowledge" and
"indirect means".
Conclusions of Law: Substantiall y Overbroad in Violation of t he 1st Amendment.

The defense argues that Article 104(2) as charged in the specification of Charge I is substantially
overbroad in violation of the 1st Amendment because persons making public statements would be
subject to prosecution if the enemy could access it in some form.

For the reasons set forth

above,the Court finds that Article 1 04(2) (Giving Intelligence to the Enemy) requires an accused
to act without authority,to have actual knowledge that he or she was giving intelligence to the
enemy, whether the giving is by direct or indirect means. These elements ensure that Article
104(2)(Giving Intelligence to the Enemy) is not unconstitutionally overbroad and would not
prohibit a substantial amount of Constitutionally protected speech.
Conclusion. The specification of Charge I states an offense and is Constitutional. The Court

will provide appropriate instructions to fully inform the fact-finder of the elements of the offense
and the defmitions of"actual knowledge" and"indirect means".

If,at trial,theGovernment

does not prove the accused knew that by giving intelligence by indirect means,he actually knew
he was giving intelligence to the enemy,the Court will entertain appropriate motions.
RULING: Defense Motion to Dismiss the specification of Charge I is DENIED.

The Court

will adopt the Benchbook instructions for Article 1 04(2) and supplement them with additional
instructions regarding actual knowledge and indirect means.
ORDERED, this the 25th day of April 201 2.

�e
COL,JA

Chief Judge, 1st Judicial Circuit

5

21292

UNITED STATES OF AMERICA
v.

Mannin�, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

Section III
Disclosure

23 April2012

1. In abundance of caution and to ensure the United States provides as much notice as possible
to the accused pursuant to Section III of the Military Rules of Evidence

(MRE), the United States

is operating under the constraints as listed in the United States' Section III disclosure, dated 21
February 2012.
2. Pursuant to MRE 301(c)(2), the United States has not granted or promised immunity or
leniency to any witness in this case in exchange for their testimony.
3. Pursuant to MRE 304(d), the United States makes the following updated disclosure of
statements, oral and written, made by the accused that are relevant to the case, known to the trial
counsel, and within the control of the Armed Forces:
See Enclosure 1.
4. Pursuant to MRE 311(d), the United States is not in possession of any new evidence seized
from the person or property of the accused, or believed to be owned by the accused, that it
intends to offer into evidence against the accused at trial.
5. Pursuant to MRE 321(c), the United States is not aware of any evidence of a prior eyewitness
identification of the accused as a lineup or other identification process that it intends to offer into
evidence against the accused at trial.
6. The United States will notify the defense of any updates to paragraphs 2, 3, 4, and 5, as they
become known.

~

ASHDENFEIN
MAJ,JA
Trial Counsel

1

21293

UNITEDSTATESOF AMERICA
Section I I I
Disclosure

V.

Manning, Bradley E.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 222II

BATES # Beginning
ManningB 00411373
ManningB 00412430
ManningB 00412538
ManningB 00412553
ManningB 00412589
ManningB 00412591
ManningB 00412593
ManningB 00412596
ManningB 00412598
ManningB 00412600
ManningB 00412601
ManningB 00412608
ManningB 00412609
ManningB 00412610
ManningB 00412611
ManningB 00412614
ManningB 00412620
ManningB 00412783
ManningB 00412784
ManningB 00412786
ManningB 00412792
ManningB 00412796
ManningB 00412800
ManningB 00412804
ManningB 00412808
ManningB 00412812
ManningB 00412816
ManningB 00412820
ManningB 00412824
ManningB 00412828
ManningB 00412830
ManningB 00412832

Enclosurel
23April20I2

BATES # End
ManningB 00411373
ManningB 00412499
ManningB 00412545
ManningB 00412588
ManningB 00412590
ManningB 00412592
ManningB 00412595
ManningB 00412597
ManningB 00412599
ManningB 00412600
ManningB 00412607
ManningB 00412608
ManningB_00412609
ManningB 00412610
ManningB 00412611
ManningB 00412619
ManningB 00412782
ManningB 00412783
ManningB 00412785
ManningB 00412791
ManningB 00412795
ManningB 00412799
ManningB 00412803
ManningB 00412807
ManningB 00412811
ManningB 00412815
ManningB 00412819
ManningB 00412823
ManningB 00412827
ManningB 00412829
ManningB 00412831
ManningB 00412833

Date Produced to
Defense
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
13-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
APPELLATE EXHIBITCX^^LLI
Page A ofPage(s) %

21294

ManningB 00412834
ManningB 00412836
ManningB 00412837
ManningB 00412838
ManningB 00412839
ManningB 00412840
ManningB 00412841
ManningB 00412842
ManningB 00412843
ManningB 00412844
ManningB 00412845
ManningB 00412846
ManningB 00412847
ManningB 00412854
ManningB 00412857
ManningB 00412865
ManningB 00412869
ManningB 00412873
ManningB 00412877
ManningB 00412881
ManningB 00412885
ManningB 00412889
ManningB 00412893
ManningB 00412897
ManningB 00412901
ManningB 00412905
ManningB 00412909
ManningB_00412913
ManningB 00412917
ManningB 00412918
ManningB 00412920
ManningB 00412922
ManningB 00412924
ManningB 00412926
ManningB 00412928
ManningB 00412930
ManningB 00412931
ManningB 00412932
ManningB 00412933
ManningB 00412934
ManningB 00412935
ManningB 00412936
ManningB 00412937

ManningB 00412835
ManningB 00412836
ManningB 00412837
ManningB 00412838
ManningB 00412839
ManningB 00412840
ManningB 00412841
ManningB 00412842
ManningB 00412843
ManningB 00412844
ManningB 00412845
ManningB 00412846
ManningB 00412853
ManningB 00412856
ManningB 00412864
ManningB 00412868
ManningB 00412872
ManningB 00412876
ManningB 00412880
ManningB 00412884
ManningB 00412888
ManningB 00412892
ManningB 00412896
ManningB 00412900
ManningB 00412904
ManningB 00412908
ManningB 00412912
ManningB 00412916
ManningB 00412917
ManningB 00412919
ManningB 00412921
ManningB 00412923
ManningB 00412925
ManningB 00412927
ManningB 00412929
ManningB 00412930
ManningB 00412931
ManningB 00412932
ManningB 00412933
ManningB 00412934
ManningB 00412935
ManningB 00412936
ManningB 00412937

16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-I2
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
APPELLATE EXHIBIT Lt >t > >
Page 3
ofPagels) B

21295

ManningB 00412938
ManningB 00412939
ManningB 00412940
ManningB 00412941
ManningB 00412951
ManningB 00412952
ManningB 00412953
ManningB 00412954
ManningB 00412955
ManningB 00412956
ManningB 00412957
ManningB 00412958
ManningB 00412963
ManningB 00412967
ManningB 00412968
ManningB 00412975
ManningB 00412981
ManningB 00412988
ManningB 00412993
ManningB 00413000
ManningB 00413007
ManningB 00413014
ManningB 00413015
ManningB 00413016
ManningB 00413017
ManningB 00413026
ManningB 00417536
ManningB 00417540
ManningB 00417552
ManningB 00417554
ManningB 00417558
ManningB 00417561
ManningB 00417572
ManningB 00417703
ManningB 00417708
ManningB 00417774
ManningB 00417791
ManningB 00417796
ManningB 00417797
ManningB 00417798
ManningB 00417820
ManningB 00417827
ManningB 00417836

ManningB 00412938
ManningB 00412939
ManningB 00412940
ManningB 00412950
ManningB 00412951
ManningB 00412952
ManningB 00412953
ManningB 00412954
ManningB 00412955
ManningB 00412956
ManningB 00412957
ManningB 00412962
ManningB 00412966
ManningB 00412967
ManningB 00412974
ManningB 00412980
ManningB_00412987
ManningB 00412992
ManningB 00412999
ManningB 00413006
ManningB 00413013
ManningB 00413014
ManningB 00413015
ManningB 00413016
ManningB 00413017
ManningB 00413796
ManningB 00417539
ManningB 00417543
ManningB 00417553
ManningB 00417557
ManningB 00417560
ManningB 00417564
ManningB 00417581
ManningB 00417707
ManningB 00417711
ManningB 00417784
ManningB 00417792
ManningB 00417796
ManningB 00417797
ManningB 00417812
ManningB 00417826
ManningB 00417835
ManningB 00417842

16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
I6-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
I6-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-I2
16-Mar-I2
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12
16-Mar-12

APELLATE EXHIBIT LXX^m
Page 4

of Page(s) S

21296

ManningB 00418562
ManningB 00418690
ManningB 00418745
ManningB 00418916
ManningB 00418990
ManningB 00419065
ManningB 00419099
ManningB 00419104
ManningB 00419118
ManningB 00419136
ManningB 00419139
ManningB 00419221
ManningB 00419253
ManningB 00419471
ManningB 00419472
ManningB 00419473
ManningB 00419487
ManningB 00419488
ManningB 00419494
ManningB 00419495
ManningB 00419496
ManningB 00419497
ManningB 00419503
ManningB 00419504
ManningB 00419517
ManningB 00419518
ManningB 00419521
ManningB 00419574
ManningB 00419627
ManningB 00419657

ManningB 00418574
ManningB 00418744
ManningB 00418915
ManningB 00418989
ManningB 00418994
ManningB 00419066
ManningB 00419103
ManningB 00419117
ManningB 00419122
ManningB 00419138
ManningB 00419220
ManningB 00419236
ManningB 00419258
ManningB 00419471
ManningB 00419472
ManningB 00419486
ManningB 00419487
ManningB 00419493
ManningB 00419494
ManningB 00419495
ManningB 00419496
ManningB 00419502
ManningB 00419503
ManningB 00419516
ManningB 00419517
ManningB 00419518
ManningB 00419521
ManningB 00419596
ManningB 00419638
ManningB 00419657

12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
12-Apr-12
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12-Apr-12
12-Apr-12
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12-Apr-12
12-Apr-12

APraULATEEXHIBIT L*->^m
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21297

Williams, Patricia CIV JFHQ-NCRJMDW SJA
From:
Sent:
To:
Cc:

(b) (6)
(b)(6)

Subject:

RE: 380-5

David Coombs

(b) (6)

Wednesday, April 25, 2012 9:38PM

Ma'am,

Pursuant to your questions earlier today, the Defense wanted to follow-up on two points:

1) Whether AR 380-5 is Punitive
As the Defense argued, AR 380-5 is a punitive regulation. If you look at the section we have been
talking about, it is entitled "Corrective Measures and Sanctions." I reproduced the relevant
sections below for your review:

Section VII
Corrective Actions and Sanctions

1-20. General
Commanders will establish procedures to make sure that prompt and apptopriate action is taken
concerning a violation of the provisions of this regulation, especially in those cases involving
incidents which can put classified information at risk of compromise, unauthorized disclosure, or
improper classification of information. Such actions will focus on a correction or elimination of
the conditions that caused or contributed to the incident.

1-21. Sanctions

APPELLATE EXHIBIT L� ')(X 1 1
Page_j_ ofPage(s) ?-

I

\..83j

21298

a. DA personnel will be subject to sanctions if they knowingly, willfully, or negligently(1) Disclose classified or sensitive information to unauthorized persons.
(2) Classify or continue the classification of information in violation of this regulation.
(3) Violate any other provision of this regulation.

b. Sanctions can include, but are not limited to warning, reprimand, suspension without pay,
forfeiture of pay, removal, dis�harge, loss or denial of access to classified information, and
removal of original classification authority. Action can also be taken under the Uniform Code of
Military Justice (UCMJ) for violations of that Code and under applicable criminal law, if
warranted.

c. Original classification authority will be withdrawn for individuals who demonstrate a disregard
or pattern of error in applying the classification and sensitivity standards of this regulation.

There is no clearer evidence that this section was entitled to be punitive than the fact that the word
"sanctions" is used four times and the word "violation" (or a variation thereof) is used three times.

2) Whether there is a Distinction Between "Intelligence Information" and "Classified and
Sensitive" Information
The Government argued that there is a distinction between "intelligence" (as charged under
Article 134) on the one hand, and "classified" and "sensitive" information, on the other. In their
motion, they argue that "intelligence is not limited only to classified or sensitive information." (p.
7). The Government does not provide any authority to support the view that "intelligence" is not
limited to classified or sensitive information (or, otherwise stated, that "intelligence" is broader
than classified or sensitive information). They simply point to the Article 104 instruction in the
Benchbook, which states that "intelligence" must be true, at least in part. The section does not
comprehensively define intelligence. The Government is proceeding from the understanding that
"intelligence" is broader than just classified or sensitive information. The Defense does not
believe this is true - it submits that "intelligence" is coextensive with classified or sensitive
information (at least as charged in this case).
2

APPEILA1E EXIllBIT lx ""x 11 1
Page� ofPage(s) +

21299

Moreover, the Defense would note that the Government's definition of "sensitive" information is
derived from section 5-19 of AR 380-5, which defines sensitive information for the purpose of the
Computer Security Act of 1987, not for the purpose of AR 380-5. "Sensitive" information for the
purpose of the Regulation is not defined. Thus it appears that when AR 380-5 is using "sensitive"
in section 1-21 it is not using this word as a term of art or defined term.
As stated, the Defense believes that "intelligence" (as charged in Article 134) is the same as
"classified" and "sensitive" information in AR 380-5. In this respect, the Defense would note the
following:

a. AR 380-5: The Regulation's purpose is as follows:

1-1. Purpose
This regulation establishes the policy for the classification, downgrading, declassification,
transmission, transportation, and safeguarding of information requiring protection in the interests
of national security.

The Regulation is 311 pages long. It covers every conceivable aspect of information assurance. It is
difficult to believe that the Army would only intend for this Regulation to cover "classified" and
"sensitive" information (and to punish disclosures of such information), but that there would be
other "intelligence" out there that the Regulation did not intend to reach. In other words, the
Government believes that there is information that does not qualify as "classified" or "sensitive"
but that is nonetheless /'intelligence." To accept this argument is to accept that the Army has left
completely unregulated a whole area of 11intelligence" to simply be dealt with otherwise than by
regulation.

b. Video Alleged in Specification 2: The Government points to a charged video as being an
example of something that falls within "intelligence" but does not fall under "classified" or
"sensitive" information within the meaning of AR 380-5. The Defense believes that the video
squarely falls within the definition of sensitive information as intended in AR 380-5. Even if we
were to accept the definition of sensitive offered by the government e� Any information, the loss,
3

APPELLATE EXHIBIT VlPage� ofPage(s) +

21300

misuse, or unauthorized access to or modification of which could adversely affect the national
interest or the conduct of federal programs, or the privacy to which individuals are entitled under
section 552a of Title 5, USC (the Privacy Act), but which has not been specifically authorized
under criteria established by an Executive Order or an Act of Congress to be kept secret in the
interest of national defense or foreign policy."), it is clear that the video, as charged, meets the
definition of sensitive. The Government has charged PFC Manning with transmitting
"information relating to the national defense [the video] ... with reason to believe such
information could be used to the injury of the United States or to the advantage of any foreign
nation." Thus, the Government believes that the video could be used to the injury of the United
States or to the advantage of a foreign nation. It would seem to follow then that the improper
release of the video "could adversely affect the national interest" (i.e. the Government's definition
of sensitive). There is no information charged that is not classified or sensitive within the
meaning of AR 380-5.

c. AR 380-S's Use of "Intelligence Information"- AR 380-5 seems to suggest that "intelligence" is
actually synonymous with a subset of classified information. For instance, section D-1 reads:

Security Controls on Dissemination and Marking of Warning Notices on Intelligence Information
D-1. General
Intelligence information will be controlled and marked in accordance with Director of Central
Intelligence Directive (DCID) 1/7, "Security Controls on the Dissemination of Intelligence
Information", included as figure D-1 of this appendix, and future revisions. Control markings as
well as all other policy stipulated in DCID 1/7 apply solely to intelligence information and not to
other Classified information. Except as specifically stipulated in this appendix, intelligence
information will be safeguarded in the same manner as other types of classified information of the
same classification level.
This section seems to support the view that "intelligence" (or more specifically "intelligence
information") is actually a sub-set of classified information. In other words, it is narrower than
classified information, not broader.

In short, the Defense does not believe that "intelligence" is broader than either classified or
sensitive information within the meaning of AR 380-5. It was clear what the Army intended to
accomplish in enacting AR 380-5: it intended to punish unauthorized disclosures of protected
information (whether we call that information "classified"/"sensitive" or "intelligence").
4

APPELLA1E EXHIBIT L>< 0(I I I
Page� ofPage(s).::)..

21301

Accordingly, the Defense submits that because there is a punitive regulation which squarely

addresses all the charged documents, the offense must be charged as an Article 92 offense and not
a 134 offense.

The Government believes that because AR 380-5 does not deal with the specific manner in which
information is disclosed (i.e. through the internet), then the regulation is not applicable. This is
not the case. AR 380-5, section 1-21a.(1) states that "DA personnel will be subject to sanctions if
they knowingly, willfully, or negligently- (1) disclose classified or sensitive information to
unauthorized persons." It does not matter how this unauthorized disclosure is carried out
(through the internet, over the phone, in person, by email, etc.). What matters is that there is a
lawful general regulation that prohibits disclosure of information, however that disclosure is
done.

Finally, the Government's email confuses preemption (the Defense's first argument) with the rule
in Borunda (the Defense's second argument). The issue of AR 380-5 deals with the latter issue (i.e.
the rule in Borunda) and not preemption. Accordingly, the Government's purported
distinguishing of McGuinness is inapposite, as that case deals with preemption.

v/r
David

David E. Coombs, Esq.
Law Office of David E. Coombs
(b) (6)

5

APPEILA1E EXHIBIT \)( xxII I

Page� ofPage(s) q_

21302

(b) (6)

***Confidentiality Notice: This transmission, including attachments, may contain confidential
attorney-client information and is intended for the person(s) or company named. If you are not
the intended recipient, please notify the sender and delete all copies. Unauthorized disclosure,
copying or use of this information may be unlawful and is prohibited.***

-----Original Message----From: (b) (6)
Sent: Wednesday, April 25, 2012 7:27 PM
To: (b) (6)

Subject: 380-5

Ma'am. Ultimately, the United States agrees that AR 380-5 is punitive in nature; however just
because a regulation is punitive in nature, not all provisions within the regulation are punitive.
For example, AR 25-2 sets forth "bolded" paragraphs which highlight the exact provisions which
are punitive. There are portions of AR 380-5 that are punitive in nature, but those provisions
follow after Chapter 1, with the specified prohibited conduct, such as storing classified
information at a residence (paragraph 7-6), knowingly or willfully disclosing classified
information (paragraph
10-11 through -23), or negligently violating the regulation (paragraph 10-10). Specifically, Chapter
1 of AR 380-5 is titled "General Provisions and Program Management." Other provisions within
Chapter 1 of AR 380-5 include an explanation of abbreviations and terms (1-3), the responsibilities
of the Secretary of the Army (1-4), the scope of the regulation (1-10), background information (1-

6

APPEILA1E EXHIBIT UX;(I l

� ofPage(s)

Page

+

1

21303

14). Most regulations, like AR 380-5, contain background information on the regulation upfront,
to include AR 380-5, para.
1-21. Paragraph 1-21, Subsection (b) thereof sets out the sanctions available for disclosing such
information, to include, without limitation, warning, reprimand, action under UCMJ, and action
under applicable criminal law. See AR 380-5, para. 1-21b. The United States does not dispute that
other provisions contained within AR 380-5 are punitive. See AR 380-5, para.
10-10 (subjecting persons to administrative sanctions if they negligently disclose, to unauthorized
persons).

However, if the Court finds Paragraph 1-21 is punitive, then Specification 1 of Charge II is not
preempted by Article 92. In addition to what has already been provided in the government's
written response and argument today, Paragraph 1-21 does not hold a Soldier criminally
responsible for wrongful and wantonly causing intelligence to be published on the internet, but
only the knowing, willful, or negligent disclosure of classified or sensitive information to
unauthorized persons. In McGuinness, the Court of Military Appeals actually held that the Navy
regulation (comparable to AR 380-5) which prohibited storing classified information at an
individual's residence was not preempted by a violation of 18 USC 793 for the same type of
offense. The Court stated that nothing in the legislative history of Article 92 provided that
Congress intended general orders I regulations to occupy the field for offenses that could be
charged under Article 134. Although the McGuiness Court applied this standard to a Clause 3
offense (18 USC 793(e)), the United States cannot find any contrary case law which would not
apply this to a Clause 1 and 2 offense. Finally, there is no evidence that the Army intended AR
380-5 to cover the field for causing intelligence to be published on the internet or even disclosure
of classified, or sensitive information or intelligence to unauthorized individuals, evidenced by
multiple other punitive laws/regulations that touch on this subject, such as AR 530-1 (paragraph 21), Articles 104, 106a.

In McGuiness, the Court found that paragraph 7-6, AR 380-5 was punitive.
Paragraph 7-4 if found within the same section as paragraph 7-6 and contains similar prohibiting
language about storing classified information.

Vr Maj Fein

APPElLATE EXHIBIT lKKX.t1 1
7

---.2_ ofPage(s) -;2.

Page

21304

Williams, Patricia CIV JFHQ-NCRIMDW SJA

From:

Sent: Wednesday, April 25, 2012 7:27 PM



00*




Subject: go-5

Ma'am. Ultimately, the United States agrees that AR 380-5 is punitive in nature; however just
because a regulation is punitive in nature, not all provisions within the regulation are punitive.
For example, AR 25-2 sets forth ?bolded? paragraphs which highlight the exact provisions which
are punitive. There are portions of AR 380-5 that are punitive in nature, but those provisions
follow after Chapter 1, with the specified prohibited conduct, such as storing classified
information at a residence (paragraph 7-6), knowingly or willfully disclosing classified
information (paragraph 10-11 through -23), or negligently violating the regulation (paragraph 10-
10). Specifically, Chapter 1 of AR 380-5 is titled ?General Provisions and Program Management.?
Other provisions within Chapter 1 of AR 380-5 include an explanation of abbreviations and terms
(1-3), the responsibilities of the Secretary of the Army (1-4), the scope of the regulation (1-10),
background information (1-14). Most regulations, like AR 380-5, contain background information
on the regulation upfront, to include AR 380-S, para. 1-21. Paragraph 1-21, Subsection thereof
sets out the sanctions available for disclosing such information, to include, without limitation,
warning, reprimand, action under and action under applicable criminal law. See AR 380-5,
para. 1-21b. The United States does not dispute that other provisions contained within AR 380-5
are punitive. See AR 380-5, para. 10-10 (subjecting persons to administrative sanctions if they
negligently disclose, to unauthorized persons).

However, if the Court finds Paragraph 1-21 is punitive, then Specification 1 of Charge II is not
preempted by Article 92. In addition to what has already been provided in the govemment?s
written response and argument today, Paragraph 1-21 does not hold a Soldier criminally
responsible for wrongful and wantonly causing intelligence to be published on the internet, but
only the knowing, willful, or negligent disclosure of classified or sensitive information to
unauthorized persons. In McGuinness, the Court of Military Appeals actually held that the Navy
regulation (comparable to AR 380-5) which prohibited storing classified information at an
individual's residence was not preempted by a violation of 18 USC 793 for the same type of
offense. The Court stated that nothing in the legislative history of Article 92 provided that
Congress intended general orders regulations to occupy the field for offenses that could be
charged under Article 134. Although the McGuiness Court applied this standard to a Clause 3
offense (18 USC 793(e)), the United States cannot find any contrary case law which would not
apply this to a Clause 1 and 2 offense. Finally, there is no evidence that the Army intended AR
380-5 to cover the field for causing intelligence to be published on the intemet or even disclosure
of classified, or sensitive information or intelligence to unauthorized individuals, evidenced by

1 APPELLATE EXHIBIT Lax A xv
2.

multiple other punitive laws/regulations that touch on this subject, such as AR 530-1 (paragiziiph 2-
1), Articles 104, 106a.

In McGuiness, the Court found that paragraph 7-6, AR 380-5 was punitive. Paragraph 7-4 if found
within the same section as paragraph 7-6 and contains similar prohibiting language about storing

classified information.

Vr Maj Fein

APPELLATE
ofPage(s) 2

21306

DEPARTMENT OF THE ARMY
U.S. ARMY MILITARY DISTRICT OF WASHINGTON
103 THIRD AVENUE
FORT LESLEY J. MCNAIR, DC 20319-5013
REPLY TO
ATTENTION OF

ANCG

4 MAY 2012

MEMORANDUM FOR PFC Bradley E. Mamiing, Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer-Henderson Hall, Fort Myer, VA 22211
SUBJECT: Request for Individual Military Counsel (IMC) - PFC Bradley E. Manning

I have reviewed your request for Individual Military Counsel (IMC) and the Memorandum from
COL Mark Cremin, Chief, U.S. Army Trial Defense Service, Fort Belvoir, VA. COL Cremin
determined that there is an attomey-client relationship and MAJ Thomas F. Hurley is reasonably
available to act as your Individual Military Counsel (IMC). Your request is approved lAW AR
27-10, paragraph 5-7 and 6-10.

2 Ends
1. Chief, USATDS Memo, 1 May 12
2. IMC Request, 25 Apr 12

MICHAEL
Major General, U
Commanding

APPELLATE EXHIBIT
PAGE REFERENCED:
,
PAGE
OF
PAGES

21307

TABLE OF CONTENTS

TAB 1

- ERB

TAB 2

-

Chief, USATDS Memo, 1 May 12

TAB 3

-

Request for IMC. U.S. v. Manning. 27 Apr 12

TAB 4

-

Charge Sheet, U.S. v. Manning

21308

DEPARTMENT OF THE ARMY
U.S. ARMY TRIAL DEFENSE SERVICE
Office of the Chief
9275 Gunston Road
Fort Belvoir, VA 22060
REPLY TO
ATTENTION OF

JALS-TD

1 May 2012

MEMORANDUM THRU PFC Bradley E. Manning
FOR OFFICE OF THE STAFF JUDGE ADVOCATE, Military District of Washington
SUBJECT: Request for Individual Military Counsel (IMC) - MAJ Thomas F. Hurley
1. I have carefully considered PFC Bradley E. Manning's request for individual military counsel
(IMC) under the provisions of Rule for Courts-Martial 506(b) and paragraphs 5-7 and 6-10, Army
Regulation (AR) 27-10, Military Justice. I have determined that the requested counsel, MAJ
Thomas F. Hurley, is reasonably available and that there is a prior attorney-client relationship that
lasted for several weeks in 2010.
2. As described in AR 27-10, para, 5-7 (f)(1)(a), the approval authority for this request is the
convening authority. In my capacity as the Chief, Trial Defense Service, I strongly recommend that
the subject request be granted.
3. POC for this action israyExecutive Officer, LTC Elizabeth Sweetland at
(b) (6)

a-c, T/r
MARKmEMIN
COL, JA
Chief, US Array Trial Defense Service

21309

25 April 2012

MEMORANDUM FOR RECORD
SUBJECT: Request for Individual Military Counsel In U.S. v. PFC Bradley E. Manning

1. References.
a. Manual for Courts-Martial (MCM), 2010
b. Army Regulation (AR) 27-10. "Military Justice," dated 16 November 2005.
2. Pursuant to sections 5-7 and 6-10 of AR 27-10 and Rule for Courts-Martial (R.C.M.)
506(b), I hereby request that Major (MAJ) Thomas Hurley be detailed as Individual
Military Counsel (IMC) to my case, U.S. v. Private First Class (PFC) Bradley E.
Manning. I request MAJ Hurley as an addition to my current detailed military counsel.
Captain (CPT) Joshua Tooman.
3. Background.
a. In summer 2010, I was detailed CPT Paul Bouchard as military counsel.
Immediately following transferal to the Pretrial Confinement Facility (PCF) at Marine
Corps Base (MCB) Quantico, Virginia, MAJ Hurley was assigned to the defense team in
order to ease the transition from theater to the continental United States until assigned
permanent defense counsel. After being detailed MAJ Matthew Kemkes as additional
counsel in August 2010, MAJ Hurley was removed from the defense team. I also
requested IMC for CPT Bouchard to stay on the case.
b. On 01 September 2010, I hired Mr. David Coombs as my civilian defense
counsel. I elected to keep my detailed military counsel, MAJ Kemkes and CPT
Bouchard, in order to assist Mr. Coombs. After transferring to the Joint Regional
Correctional Facility (JRCF) at Fort Leavenworth, Kansas in April 2011, CPT Joshua
Tooman was assigned as an assistant to the case.
c. Most recently, on 13 April 2012, I elected to excuse both of my detailed military
defense counsel, MAJ Kemkes and CPT Bouchard, and requested that CPT Tooman
be detailed as full-time military defense counsel.

21310

^UBJ^CT^

Re^ue^l^orln^i^i^u8lMililary(^oun^^linU.S.^.PF(^Br^dl^^^.M8nnin^

4. Presently, my defense team consists of one civilian defense counsel, one military
defense counsel,and one legal administrator,namely:
a. Mr David Coombs, Civilian Defense Counsel.
b. CPTJoshuaTooman,Defense Counsel.
c. ^ 0 1 Melissa Santiago, Legal Administrator
5 In contrast, the prosecution presently consists of at leasf^our officers as trial counsel
and one legal administrator out ofthe Military District of^ashington(MD^) Office of
the Staff Judge Advocate (OSJA), namely:
a. MAJ Ashden Feyn, Trial Counsel.
b. CPTJoDean Morrow III,AssistantTrial Counsel,
c

CPTAngel Overgaard, AssistantTrial Counsel

d. CPTJeffrey^hyte,AssistantTrial Counsel,
e

^ 0 1 Arthur Ford, Legal Administrator.

6 Currenflyfhere is an uneven representation,o^ at least two Fulltime n^ilitary counsel,
between n^yself and n^y defense tean^, and the governn^ent and prosecution team I
therefore make this request priinarily to compensate for the difference between the
defense and prosecution. Otherv^ise Mr Coombs, my civilian defense counsel will take
on an unfair burden of the work load in my case. As noted above, the teams were much
closerto even whenlhad two parttime detailed military counsel to assist Mr Coombs
7. l a m providing the following information,required under paragraph 5-7(f)(2) of AR
27-10, to process this IMC request.
a. Name, grade and station of requested counsel. MAJ Thomas Hurley, U.S. Army
Trial Defense Service (USATDS), DCAP, Arlington, Virginia 22203.
b. Name, grade and station of accused and existing defense counsel
(1) PFC Manning,Headquarters and Headquarters Company (HHC),US Army
Oarrison(USAO),Joint Base MyerHenderson Hall,Fort Myer,Virginia 22211
(2) CPTJoshuaTooman, USATDS, Fort Leavenworth, Kansas 66027

21311

SUBJECT: Request for Individual Military Counsel in U.S. v. PFC Bradley E. Manning

c. Charges and summary of charges.
(1) Five (5) specifications of violating a lawful general regulation under Article 92,
UCMJ (Section 892, Title 10 U.S.C.)
(2) One (1) specification ofaiding the enemy under Article 104, UCMJ (Section
904, Title 10 U.S.C.)
(3) One (1) specification of disorders and neglects to the prejudice of good order
and discipline and service discrediting, eight (8) specifications of communicating
classified information (Section 793(e), Title 18 U.S.C), five (5) specifications of stealing
or knowingly conveiting government property (Section 641, Title 18 U.S.C), and two (2)
specifications of knowingly exceeding authorized access to a government computer
(Section 1030(a)(1), Title 18 U.S.C.) under Article 134, UCMJ (Section 934, Title 10
U.S.C.)
d. Date charges preferred and status of case. The original charges were preferred
on 05 July 2010. Those charges were dismissed by the convening authority on 18
March 2011. The current charges were preferred on 01 March 2011. On 16 December
through 22 December 2011, those charges were investigated by an Investigating Officer
(10) pursuant to Article 32(b), UCMJ (Section 832(b), Title 10, U.S.C.) The charges
were referred, without special instructions, to a general court-martial on 03 February
2012.
e. Date and form of pretrial restraint. Ordered into pretrial confinement on 29 May
2010. In confinement at Camp Arifjan, Kuwait until transferred to Quantico, Virginia on
29 July 2010. Later transferred to Fort Leavenworth, Kansas on 20 April 2011. Periodic
transfers near Fort Meade for pretrial hearings.
f. Anticipated date and length of trial. Presently expected to be twenty-one (21)
days between September and December 2012 at Fort Meade, Marlyand.
9 Existence of attomey-client relationship. As mentioned above, MAJ Hurley was
previously assigned in August 2010 as an assistant to my case until MAJ Kemkes was
permanently detailed as military counsel.
h. Special circumstances or other factors relating to availability. MAJ Hurley's
current duty station is within the MDW, near the same location as the prosecution. Fort
McNair, D.C., and the pretrial hearings and trial. Fort Meade, Maryland.

21312

SUBJECT: Request for Individual Military Counsel in U.S. v. PFC Bradley E. Manning
8. I understand the decision to request for and retain military defense counsel is my
own decision. No one has forced or coerced me into making this request. I appreciate
the charges in this case. I understand the maximum punishment for the offenses is a
dishonorable discharge, reduction to lowest enlisted pay grade (E-1), total forfeitures of
pay and allowances, and confinement for life without the possibility of parole.
9. The point of contact (POC) for this memorandum is the undersigned at HHC, USAG,
239 Sheridan Avenue, Building 417, Joint Base Myer-Henderson Hall, Fort Myer,
Virginia 22211.

'''X
BRADLEYE. MANNING
PFC, U.S. Army

21313

27 April 2012
MEMORANDUM FOR RECORD
SUBJECT: Addendum to Request for Individual Military Counsel in U.S. v. PFC Bradley
E. Manning

1. I have recently been informed that the Government added an additional trial counsel
to their team. The Government now has 1 LT Alexander S. VonElten on its team. The
added counsel provides additional support for my Individual Military Counsel request.
2. The Point of Contact (POC) for this memorandum is the undersigned at HHC,
USAG, 239 Sheridan Avenue, Building 417, Joint Base Myer-Henderson Hall, Fort
Myer, Virginia 22211.

'

'

-^^2-1

BRADLEY MANNING
PFC U.S. Army

(b) (6)

21314

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21315

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UN I T E D STATES
v.

)
)

RULING:

)

Motion to Reconsider Ruling

)

Department of State Damage

)

MANNING, Bradley E. , PFC
U.S. Army, (b) (6)

(DOS) Assessment

)
)

Headquarters and Headquarters Company,

)

U.S. Army Garrison, Joint Base Myer­

)

Henderson Hall, Fort Myer, VA 22211

Government

DATED: II May 2012

)

The Government moves the Court to reconsider its 23 March 2012 ruling requiring the
Govenunentby 18 May 2012 to:
1.

disclose to the Defense, any unclassified information from the DOS damage

assessment that is favorable to the accused and material to guilt or punishment;
2.

disclose to the Court, any additional unclassified information from the DOS da

age

r

assessment not disclosed to the defense for in camera review.



3. identify what classifed information in the DOS damage assessment is favorabl to the
defense and material to guilt or punishment; and

4. disclose to the Court all classified information in the DOS damage assessment or in

f

camera review IAW RCM 70l(g)(2) or, at the request of the Government, in camera revi w for
limited disclosure under MRE 505(g)(2).

r

The Government moves the Court to rule that the State Department Damage Asse sment
is a draft, and, therefore, any information contained in it is not discoverable because of its
speculative nature. The Defense opposes.
The Government has provided the Court and Defense Counsel with a classified
from DOS with background information explaining the draft nature of the DOS Damage
Assessment.

The Government has also provided the Court with the classifed DOS D

age

Assessment for in camera review to rule on this motion.
The Court has examined both the classified letter and the classified DOS Damage
Assessment and finds that the DOS Damage Assessment is a draft damage assessment.
that it is a draft does not make the draft speculative or not discoverable under RCM 701.

The fact

21316

RULING: The Govenunent Motion to Reconsider the Court's ruling of23 March 2012

·th

respect to the DOS Damage Assessment is GRANTED. Having reconsidered the 23 May 2012
ruling, the Government Motion to Find the DOS Draft Damage Assessment not discovera le is
DENIED.

The Government will comply with the 23 March 2012 ruling of the Court.

So Ordered this 11th day of May 2012.

�/�C:/
DENISE R. LIND .
COL,JA
Chief Judge, 1st Judicial Circuit

21317

UNITED STATES OF AMERICA
v.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

Prosecution Notification
to the Court

2 May 2012

The United States supplements it20 April2012 response to the Court's Order, dated23 March
2012, as follows:
1 . The prosecution contacted the CIA to determine whether this agency contains any forensic

results or investigative files relevant to this case. 1

CIA. The CIA has investigative files. The United States reviewed this information for

evidence that is favorable to the accused and material to either guilt or punishment.
2. At this time, the United States anticipates that the FBI and CIA are the only government
entities that are custodians of classified forensic results or investigative files relevant to this case
that will seek limited disclosure lAW MRE 505( g)(2).

ASHDENFEIN
MAJ, JA
Trial Counsel

1

On 16 April2012, the Court granted the Government's motion for leave of the Court to extend the time

to respond from20 April2012 to2 May2012 as to whether the CIA will release classified information in
original form, provide for limited disclosure under MRE 505(g)(2), or invoke the classified information
privilege under MRE 505(c). This filing is in response to this extension of time.

21318

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)

DEFENSE MOTION TO DISMISS
SPECIFICATIONS 2, 3, 5, 7, 9, 10,
11 AND 15 OF CHARGE II

DATED: 10 May 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law, Rule for
Courts Martial (R.C.M.) 907(a), R.C.M. 907(b)(1)(B), and the First and the Fifth Amendments to
the United States Constitution, requests this Court to dismiss Specifications 2, 3, 5, 7, 9, 10, 11
and 15 of Charge II because 18 U.S.C. Section 793(e) is unconstitutionally vague in violation of
the Fifth Amendment and substantially overbroad in violation of the First Amendment. In the
alternative, the Defense requests this Court to provide limiting instructions that narrow the
breadth of Section 793(e) and more clearly define its vague terms.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. The Defense, as the moving party, bears the burden of this motion by a preponderance of the
evidence pursuant to R.C.M. 905(c)(1) and (2)(A).
FACTS
3. PFC Manning is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of conduct prejudicial to good order and
discipline and service discrediting, eight specifications of communicating classified information,
five specifications of stealing or knowingly converting government property, and two
specifications of knowingly exceeding authorized access to a government computer, in violation
of Articles 92, 104, and 134, UCMJ, 10 U.S.C. §§ 892, 904, 934 (2010). Specifically, in
Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II, PFC Manning is charged with
unauthorized possession and disclosure of classified information in violation of Section 793(e).
See Charge Sheet.

21319

WITNESSES/EVIDENCE
4. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this Court to consider the following evidence in support of the Defense’s
motion:
a. Charge Sheet.
LEGAL AUTHORITY AND ARGUMENT
5. The Defense submits that Section 793(e) has multiple unconstitutionally vague terms that
render the statute unconstitutional. Additionally, Section 793(e) is substantially overbroad in
violation of the First Amendment. In the alternative, if this Court does not find that Section
793(e) is either unconstitutionally vague or substantially overbroad, this Court should provide
limiting instructions that narrow the breadth of Section 793(e) and more clearly define its vague
terms.
A.

18 U.S.C. Section 793(e) is Unconstitutionally Vague in Violation of the Due Process
Clause

6. As a general rule, “the void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U.S. 352, 357 (1983); see United States v. Moore, 58 M.J. 466, 469
(C.A.A.F. 2003).
7. Among other requirements, the vagueness doctrine mandates that penal statutes provide fair
warning of the conduct that is prohibited. United States v. Lanier, 520 U.S. 259, 265 (1997).
The doctrine enshrines the principle “that no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed” in three important respects.
Id. at 265-66 (quoting Bouie v. City of Columbia, 378 U.S. 347, 351 (1964)). First, it “bars
enforcement of ‘a statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and differ as to its
interpretation.’” Id. at 266 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).
Second, the rule of lenity “ensures fair warning” by counseling courts to interpret an ambiguous
statute to proscribe only “conduct clearly covered.” Id. Third, although limited judicial gloss is
permitted to clarify some uncertainty in a statute, that gloss must not be novel or so substantial as
to constitute judicial rewriting of the statute; a court “may impose a limiting construction on a
statute only if it is ‘reasonably susceptible’ to such a construction.” Reno v. Am. Civil Liberties
Union, 521 U.S. 844, 884 (1997); see id. at 884-85; Lanier, 520 U.S. at 266.
8. Section 793(e) punishes:
Whoever having unauthorized possession of, access to, or control over any
document, writing, code book, signal book, sketch, photograph, photographic
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negative, blueprint, plan, map, model, instrument, appliance, or note relating to
the national defense, or information relating to the national defense which
information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicates,
delivers, transmits or causes to be communicated, delivered, or transmitted, or
attempts to communicate, deliver, transmit or cause to be communicated,
delivered, or transmitted the same to any person not entitled or receive it, or
willfully retains the same and fails to deliver it to the officer or employee of the
United States entitled to receive it[.]
18 U.S.C. § 793(e). The Defense submits that the phrases “relating to the national defense” and
“to the injury of the United States or to the advantage of any foreign nation” are
unconstitutionally vague. With these two vague phrases working in concert, Section 793(e) fails
to provide the fair warning required by the Due Process Clause. Each unconstitutionally vague
term is discussed in turn.
(1) The Phrase “Relating to the National Defense” is Unconstitutionally Vague
9. The phrase “relating to the national defense” is unconstitutionally vague because it gives no
fair warning of what information comes within its sweeping scope. How close of a connection to
national defense must the information have before it is “relating to the national defense?” Will
any conceivable connection suffice? The language of Section 793(e) provides no answer, and
courts have spent considerable time and effort in a vain attempt to give some content to this
exceedingly vague phrase. See United States v. Squillacote, 221 F.3d 542, 576 (4th Cir. 2000)
(“[Sections 793 and 794] unfortunately provide no guidance on the question of what kind of
information may be considered related to or connected with the national defense. The task of
defining ‘national defense’ information thus has been left to the courts.” (emphasis added)). In
the meantime, members of the public “must necessarily guess at its meaning and differ as to its
interpretation.’” Lanier, 520 U.S. at 266 (quoting Connally, 269 U.S. at 391).
10. The first effort in the long line of cases interpreting this phrase was made by the United
States Supreme Court in Gorin v. United States, 312 U.S. 19 (1941), in interpreting a predecessor
statute. There, the Court held that the term “national defense” was a “generic concept of broad
connotations, referring to the military and naval establishments and the related activities of
national preparedness.” Id. at 28 (internal quotations omitted). It soon became clear, however,
that this definition could not be the end of the matter. After all, “[t]here are innumerable
documents referring to the military or naval establishments, or related activities of national
preparedness, which threaten no conceivable security or other government interest that would
justify punishing one who ‘communicates’ such documents.” Melville B. Nimmer, National
Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case, 26 Stan. L.
Rev. 311, 326 (1974). The serious First Amendment implications if the Gorin Court’s
interpretation were to be accepted for all cases could not be overlooked. Thus, the search for the
ideal judicial gloss on this vague statutory term continued.
11. In United States v. Heine, 151 F.2d 813 (2d Cir. 1945), Judge Learned Hand attempted to
provide this gloss. The court first explained the problem with the potentially all-encompassing
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phrase “relating to the national defense”: “It seems plain that the [phrase] cannot cover
information about all those activities which become tributary to ‘the national defense’ in time of
war; for in modern war there are none which do not.” Id. at 815. Without providing a definitive
gloss on what the phrase meant, the court settled on identifying information that was not
included in that phrase, explaining that “‘[i]nformation relating to the national defense,’
whatever else it means, cannot . . . include” information that the Government has itself made
public. Id. at 816.
12. Since Heine, courts have continued to refine the notion of when information is sufficiently
public to be outside Section 793(e) and when it is sufficiently “relating to the national defense.”
The Fourth Circuit, for instance, has provided further judicial gloss on the phrase, requiring the
information to be “closely held” by the Government and not lawfully available to the general
public. See United States v. Morison, 844 F.2d 1057, 1071-72 (4th Cir. 1988) (approving district
court’s instruction using this closely held language); United States v. Dedeyan, 584 F.2d 36, 3940 (4th Cir. 1978) (similar).
13. This “closely held” gloss cannot in itself provide the requisite fair notice, however. Given
the Government’s tendency over the years to over-classify information, see, e.g., Reducing OverClassification Act, Pub. L. No. 111-258, § 2(1), 124 Stat. 2648 (2010) (“security requirements
nurture over-classification and excessive compartmentation of information among agencies”),
classification of information is not a talisman indicating that the information is in fact closely
held by the government. Through all of this judicial gloss and classification obfuscation, the
only thing that remains clear about the phrase “relating to the national defense” is this: it cannot
provide the constitutionally required fair warning of what information comes within its scope.
14. Heaping one limiting construction on top of another, courts have long struggled to provide
by interpretation the requisite fair warning that the phrase “relating to the national defense”
cannot supply on its own. These unsuccessful efforts demonstrate that the phrase is not
reasonably susceptible to a limiting construction. See Reno, 521 U.S. at 884. Accordingly, as
the phrase “relating to the national defense” fails to provide the fair warning required under the
vagueness doctrine, it is unconstitutionally vague in violation of the Fifth Amendment to the
United States Constitution.
(2) The Phrase “to the Injury of the United States or to the Advantage of Any Foreign
Nation” is Unconstitutionally Vague
15. Additionally, the phrase “to the injury of the United States or to the advantage of any foreign
nation” is unconstitutionally vague because it fails to provide a defendant with fair warning of
what constitutes criminal conduct. This phrase runs afoul of the vagueness doctrine in three
respects: its use of the disjunctive casts a wide net on the types of information covered; courts
have transplanted the phrase from a modifier of information to a modifier of the requisite mens
rea; and it fails to give any indication of what type or how much of a potential injury or
advantage must exist before it is triggered.
16. The phrase “to the injury of the United States or to the advantage of any foreign nation” is
phrased in the disjunctive. Thus, even where the United States suffers no injury, the phrase is
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still potentially implicated. Given the potential First Amendment interests that may be at stake
with respect to the disclosure of information, the phrase’s broad scope is problematic. “[I]f a
communication does not work an injury to the United States, it would seem to follow logically
that no government interest can be asserted to overcome the first amendment’s guarantee of
freedom of speech.” Nimmer, supra, at 330.
17. Moreover, in their attempt to provide content to the phrase through judicial gloss, courts
have impermissibly transplanted the phrase to cure vagueness concerns presented by other
phrases of Section 793(e). For example, at least two courts have used the “to the injury of the
United States or to the advantage of any foreign nation” phrase to shore up the shoddy mens rea
of Section 793(e) by holding that a combination of evil motive, bad or underhanded purpose, and
acting with the intent to injure the United States is the necessary mens rea. See, e.g., United
States v. Truong Dinh Hung, 629 F.2d 908, 918-19 (4th Cir. 1980); United States v. Rosen, 445
F. Supp. 2d 602, 625-26 (E.D. Va. 2006). The problem with this transplantation is that, under
the statutory text, the phrase “to the injury of the United States or to the advantage of any foreign
nation” modifies the type of information – “relating to the national defense” – not the state of
mind of the accused. See 18 U.S.C. § 793(e) (“information relating to the national defense which
information the possessor has reason to believe could be used to the injury of the United States
or to the advantage of any foreign nation” (emphasis added)). Moreover, the use of one vague
term of a statute in an attempt to make a different vague term constitutionally clear is simply
circular and is further evidence of Section 793(e)’s vagueness.
18. Finally, the statutory text gives no substance to the terms “injury” or “advantage.” What
type of injury or advantage is contemplated by Section 793(e)? What magnitude of injury or
advantage is required? These questions lead to the ultimate question for vagueness purposes:
How is a person supposed to know what conduct is proscribed by the statute when the statute
itself leaves so many questions unanswered?
19. For these reasons, the phrase “to the injury of the United States or to the advantage of any
foreign nation” is unconstitutionally vague.
(3) These Two Vague Phrases Render Section 793(e) Unconstitutionally Vague
20. The vague provisions mentioned above render Section 793(e) unconstitutionally vague. The
precise meaning of each phrase has eluded the courts. In fact, no court has held that the plain
statutory text has provided fair notice of what conduct is proscribed. Moreover, substantial
judicial gloss has been unable to give clear content to these phrases. Where, as here, courts are
forced to trade in the tools of statutory construction for the tools of legislative drafting in an
attempt to remedy the rampant ambiguities of a criminal statute, the Due Process Clause of the
Fifth Amendment has been offended.
21. The rule of lenity, one of the three manifestations of the fair warning requirement, requires
that any ambiguity in a criminal statute be resolved in the accused’s favor. See Lanier, 520 U.S.
at 266. Because of the fatal ambiguities in Section 793(e), this Court should declare Section
793(e) unconstitutionally vague and dismiss Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge
II.
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B.

18 U.S.C. Section 793(e) is Unconstitutionally Overbroad in Violation of the First
Amendment

22. A law is substantially overbroad in violation of the First Amendment where “a substantial
number of its applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.” United States v. Stevens, ___ U.S. ___, 130 S. Ct. 1577, 1587 (2010)
(quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008));
see City of Houston v. Hill, 482 U.S. 451, 466-67 (1987).
23. The Defense submits that Section 793(e) is substantially overbroad in violation of the First
Amendment. By its broad terms, Section 793(e) regulates a substantial amount of protected
speech. Additionally, Section 793(e) infringes on the freedom of the press to investigate and
publish articles on national defense topics.
24. Section 793(e) clearly regulates a wide range of speech: it prohibits any willful
communication, delivery, transmission, retention (or attempt to commit any of these acts) of any
information relating to the national defense, provided that the person has unauthorized
possession and reason to believe that the information could be used to the injury of the United
States or to the advantage of any foreign nation. See 18 U.S.C. § 793(e). Information relating to
the national defense could include speech about government programs and policies, as well as
public affairs – core political speech under the First Amendment. See Connick v. Myers, 461
U.S. 138, 145 (1983).
25. Moreover, Section 793(e) targets disclosure or retention of only information relating to the
national defense; if the information does not relate to the national defense, the speech is not
regulated under Section 793(e). Thus, Section 793(e) is a content-based regulation of speech.
See Stevens, 130 S. Ct. at 1584; Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-43 (1994).
Such content-based regulations of speech are “presumptively invalid, and the Government bears
the burden to rebut that presumption.” Stevens, 130 S. Ct. at 1584 (quoting United States v.
Playboy Entm’t Group, Inc., 529 U.S. 803, 817 (2000)) (internal quotations omitted).
26. While the Government certainly has a strong interest in national security, the Government’s
invocation of its national security interest cannot simply vitiate bedrock First Amendment
protections. As Judge Wilkinson explained in his concurrence in Morison:
The First Amendment interest in informed popular debate does not simply vanish
at the invocation of the words “national security.” National security is public
security, not government security from informed criticism. No decisions are more
serious than those touching on peace and war; none are more certain to affect
every member of society. Elections turn on the conduct of foreign affairs and
strategies of national defense, and the dangers of secretive government have been
well documented.
844 F.2d at 1081. Justice Douglas sounded similar sentiments in his concurrence in New York
Times Co. v. United States, 403 U.S. 713 (1971), stating that “[s]ecrecy in government is
6

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fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of
public issues are vital to our national health.” Id. at 724. Therefore, notwithstanding the
Government’s interest in national security, the First Amendment interests implicated in
information relating to the national defense are substantial and must not be overlooked.
27. Additionally, Section 793(e) poses substantial dangers to the free speech rights of reporters
who investigate and publish stories on national defense related topics.1 Under the terms of
Section 793(e), if a reporter had unauthorized possession of information relating to the national
defense and published a story containing that information, having reason to believe that the
information in the story could be used to the injury of the United States or to the advantage of
any foreign nation, that reporter could be subjected to criminal prosecution. See 18 U.S.C. §
793(e). If Section 793(e) is upheld, the chilling effect it will have on this core speech of public
concern will be dramatic.
28. For these reasons, Section 793(e) is substantially overbroad in violation of the First
Amendment. Accordingly, this Court should dismiss Specifications 2, 3, 5, 7, 9, 10, 11 and 15
of Charge II.
C.

In the Alternative, This Court Should Provide Limiting Instructions That Narrow
the Breadth of Section 793(e) and More Clearly Define its Vague Terms

29. While the Defense maintains that, for the reasons articulated above, Section 793(e) is both
unconstitutionally vague and substantially overbroad, in the event that this Court finds otherwise,
the Defense requests this Court to provide limiting instructions that narrow the breadth of
Section 793(e) and more clearly define its vague terms. Specifically, the Defense requests that
the Court provide multiple limiting instructions for the term “relating to the national defense.”
30. In its definition of the term “relating to the national defense,” this Court should inform the
members that the Government must prove beyond a reasonable doubt that the information at
issue would be potentially damaging to the United States if disclosed. See Morison, 844 F.2d at
1071-72 (approving a jury instruction with this language). Moreover, the potential for the
damage to national security if the information is disclosed must be reasonable and direct; a
strained or distant likelihood of such harm is insufficient. See Gorin, 312 U.S. at 31 (approving
a jury instruction with this language). Finally, the type of harm that disclosure of the information
is likely to cause must be endangerment to “the environment of physical security which a
functioning democracy requires.” Morison, 844 F.2d at 1082 (Wilkinson, J., concurring).
31. As this prosecution also implicates First Amendment concerns, this Court should instruct the
members that the Government must prove beyond a reasonable doubt that “potentially damaging
to the United States” means that a disclosure of the information would be likely to cause
1

Though PFC Manning is not a reporter or member of the news media, he is permitted to assert their rights in an
overbreadth challenge to a statute on First Amendment grounds. See United States v. Bilby, 39 M.J. 467, 468-69 n.2
(C.M.A. 1994) (“First Amendment overbreadth is one of the few exceptions to the principle that ‘a person to whom
a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be
applied unconstitutionally to others in situations not before the Court.’” (quoting New York v. Ferber, 458 U.S. 747,
767 (1982)).

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imminent serious injury to the United States. See New York Times, 403 U.S. at 726-27 (Brennan,
J., concurring); Nimmer, supra, at 331-32.
32. Additionally, this Court should further instruct the members that on the “relating to the
national defense” element the Government must prove beyond a reasonable doubt that the
Government closely held the information and that the accused knew the information was closely
held. See Morison, 844 F.2d at 1071-72 (approving district court’s instruction using this closely
held language); Dedeyan, 584 F.2d at 39-40 (similar); Rosen, 445 F.Supp.2d at 620, 625
(discussing closely held requirement and requirement of accused’s knowledge that the
information was closely held). To do this, the Government must prove at least two things: (1)
that the information was classified and (2) that the information was not otherwise available to the
public.
CONCLUSION
33. For these reasons, the Defense requests this Court to dismiss Specification 2, 3, 5, 7, 9, 10,
11 and 15 of Charge II because Section 793(e) is unconstitutionally vague in violation of the
Fifth Amendment and substantially overbroad in violation of the First Amendment. In the
alternative, the Defense requests this Court to provide limiting instructions that narrow the
breadth of Section 793(e) and more clearly define its vague terms.

Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

JOSHUA J. TOOMAN
CPT, JA
Defense Counsel

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UNITED STATES OF AMERICA
v.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)

GOVERNMENT RESPONSE
TO DEFENSE MOTION TO
DISMISS SPECIFICATIONS

)
)
)
)
)

2, 3, 5, 7, 9, 10, 11, AND 15
OF CHARGE II
24 May 2012

RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny the defense motion to dismiss Specifications 2, 3, 5, 7, 9,
10, 11, and 15 of Charge II. 18 U.S.C. § 793(e) is neither unconstitutionally vague in violation
of the Fifth Amendment to the United States Constitution, nor substantially overbroad in
violation of the First Amendment.

BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the defense has the burden of persuasion on any factual issue the
resolution of which is necessary to decide the motion. Manual for Courts-Martial (MCM),
United States, Rule for Courts-Martial (RCM) 905(c)(2) (2008). The burden of proof is by a
preponderance of the evidence. RCM 905(c)( l ).

FACTS

The United States stipulates to the facts as set forth in the defense motion.

WITNESSES/EVIDENCE

The United States requests this Court consider the referred charge sheet in support of its
response to the defense motion.

LEGAL AUTHORITY AND ARGUMENT

The defense argues that 18 U.S.C.§ 793(e) is unconstitutionally vague on its face in
violation of the Fifth Amendment because the phrases "relating to the national defense" and "to
the injury of the United States or to the advantage of any foreign nation" do not provide the fair
warning required by the Due Process Clause. Def. Mot. at 3. Additionally, the defense argues
that 18 U.S.C. 793(e) is substantially overbroad in violation of the First Amendment because it
"regulates a substantial amount of protected speech" and "infringes on the freedom of the press

1

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to investigate and publish articles on national defense topics." Def. Mot. at 6. The defense
arguments have no merit for the reasons set forth below.

I.

THE DEFENSE SHOULD BE PRECLUDED FROM CHALLENGING 18 U.S.C.§
793(e) AS VAGUE ON ITS FACE.

At the outset, the defense should be precluded from mounting a facial vagueness
challenge to 18 U.S.C.§ 793(e), rather than an as-applied challenge, because there are no First
Amendment rights implicated in this case. See United States v. Mazurie, 419 U.S. 544, 550
(1975) ("It is well established that vagueness challenges to statutes which do not involve First
Amendment freedoms must be examined in the light of the facts of the case at hand."). First
Amendment cases are different and are "concerned with the vagueness of the statute 'on its face'
because such vagueness may in itself deter constitutionally protected and socially desirable
conduct." United States v. National Dairy Products Corp. , 372 U.S. 29, 36 (1963); United States
v. Sun, 278 F.3d 302, 309 (4th Cir. 2002).
Although it is unclear whether a First Amendment issue can ever arise in a prosecution
under the Espionage Act, the Fourth Circuit, considering a vagueness challenge to§ 793(d) and
(e) in a leak case involving a naval intelligence employee, stated "Actually we do not perceive
any First Amendment rights to be implicated here." United States v. Morison, 844 F.2d 1057,
1068 (4th Cir. 1988). Similarly, in United States v. Kim, the court rejected a defendant's First
Amendment challenge in a prosecution for oral disclosures of classified information. United
States v. Kim, 808 F. Supp. 2d 44, 56-57 (D.D.C. 2011). The court ultimately held that for
purposes of the First Amendment, there was no difference between oral disclosures and written
disclosures of classified information. /d. at 56. Further, the court noted the uniformly held view
that government employees who sign security agreements lack protection under the First
Amendment. /d. at 57 (citing McGehee v. Casey, 718 F.2d 1137, 1143 (D.C. Cir. 1983);
Berntsen v. CIA, 618 F. Supp. 2d 27, 29 (D.D.C. 2009)); see also Morison, 844 F.2d at 1070
("[W]hen [§ 793(e) is] applied to a defendant in the position of the defendant here, there is no
First Amendment right implicated.").
The accused in this case is charged with multiple specifications alleging willful
communication of national defense information to unauthorized persons. The evidence will
show that the accused signed multiple non-disclosure agreements. Accordingly, no First
Amendment rights are implicated by application of 18 U.S.C.§ 793(e) to the conduct in this
case. The defense should be precluded from asserting a facial vagueness challenge to the statute.

II.

18 U.S.C.§ 793(e) PROVIDES THE FAIR WARNING REQUIRED BY THE DUE
PROCESS CLAUSE.

Assuming, arguendo, First Amendment rights are implicated in this case, 18 U.S.C.§
793(e) is not unconstitutionally vague because it provides fair warning to persons of ordinary
intelligence. In particular, the phrase "related to the national defense" has been repeatedly
challenged by defendants on the basis of impermissible vagueness and has survived the scrutiny

2

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of the Suprem� Court and multiple jurisdictions. See discussion infra Part II.A. While the
defense motion does an adequate job summarizing the evolution of case law in this area, the
defense has failed to distinguish this case from all the other cases that have considered 18 U.S.C.
1
§ 793(e) and related provisions and found the statute to be sufficiently definite.
A. The Phrase "Relating to the National Defense" is not Unconstitutionally Vague.
Due process requires that a statute be declared void when it "fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, 304
(2008) (citing Hill v. Colorado, 530 U.S. 703, 732 (2000)). There is a strong presumption of
validity that attaches to an Act of Congress; hence, "statutes are not automatically invalidated as
vague simply because difficulty is found in determining whether certain marginal offenses fall
within their language." Jordan v. De George, 34 1 U.S. 223, 231 (1951); see also Williams, 553
U.S. at 305 ("Its basic mistake lies in the belief that the mere fact that close cases can be
envisioned renders a statute vague."). Clarity at the requisite level may be supplied by judicial
gloss on an otherwise uncertain statute. See United States v. Lanier, 520 U.S. 259, 266 (1997).
The defense argues that the phrase "relating to the national defense" is unconstitutionally
vague because it fails to give fair warning of "what information comes within its sweeping
scope." Def. Mot. at 3. However, every court that has had occasion to consider the phrase in the
vagueness context has rejected the argument. In Gorin v. United States, 312 U.S. 19 (1941), the
Supreme Court considered the same phrase in§ 2(a) of the Espionage Act (the predecessor to§
793). The Court found the term "national defense" had a "well understood connotation" and
held that the "language employed [in§ 2(a)] appears sufficiently definite to apprise the public of
prohibited activities and is consonant with due process." /d. at 28. The defense motion makes
no attempt to distinguish the holding in Gorin from this case.
Since the Supreme Court's decision in Gorin, no other court has found the phrase
"relating to the national defense" unconstitutionally vague in any context, specifically in cases
involving charges under§ 793. See Morison, 844 F.2d at 1071-74 (rejecting vagueness
challenge and upholding the language of§ 793(d) and (e)); United States v. Dedeyan, 584 F.2d
36, 39 (4th Cir. 197�) (rejecting vagueness challenge and upholding the language of§ 793(f));
United States v. Boyce, 594 F.2d 1246, 1252 n.2 (9th Cir. 1979) (upholding the language of§§
793 and 794); United States v. Rosen, 445 F. Supp. 2d 602, 617-22 (E.D. Va. 2006) (rejecting
vagueness challenge and upholding the language of§ 793(d) and (e)); Kim, 808 F. Supp. 2d at 53
(rejecting vagueness challenge and upholding the language of§ 793(d)).
While it is true, as the defense notes, that the Fourth Circuit has provided further judicial
gloss on the phrase "relating to the national defense," the defense fails to establish why further
refinement cannot remedy the vagueness concerns of language the Supreme Court considered

1 18 U.S.C. § 793(e) provides that "[w]hoever having unauthorized possession of...information relating to the
national defense which information the possessor has reason to believe could be used to the injury of the United
States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be
communicated, delivered, or transmitted...the same to any person not entitled to receive it... [s]hall be fined under
this title or imprisoned not more than ten years, or both. I 8 U.S.C. § 793(e).

3

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"sufficiently definite" without judicial gloss. Gorin, 312 U.S. at 28; see also Lanier, 520 U.S. at
266 (noting that "clarity at the requisite level may be supplied by judicial gloss on an otherwise
uncertain statute"); Morison, 844 F.2d at 1071 ("[A]ll vagueness may be corrected by judicial
construction which narrows the sweep of the statute within the range of reasonable certainty.").
In fact, the Fourth Circuit recently noted that the judicial glosses refining the meaning of "related
to the national defense" arguably offer "more protection to defendants than required by Gorin."
United States v. Squillacote, 221 F.3d 542, 580 n.23 (4th Cir. 2000). Finally, the defense makes
no attempt to assert that these judicial glosses are inconsistent in any way, except to say that the
"precise meaning of [the] phrase has eluded the courts." Def. Mot. at 5. Refinement through
judicial gloss does not mean indecision or inconsistency, which might provide support for the
defense position. Accordingly, this Court should find the phrase "relating to the national
defense" sufficiently definite to overcome any claim of unconstitutional vagueness in violation
of the Fifth Amendment.
B. The Phrase "to the Injury of the United States or to the Advantage of Any Foreign
Nation" is not Unconstitutionally Vague.
The defense also argues that the phrase "to the injury of the United States or to the
advantage of any foreign nation" is unconstitutionally vague. Def. Mot. at 4. While the United
States is unaware of any case that challenges this specific phrase as unconstitutionally vague,
courts have held that the phrase "reason to believe could be used to the injury of the United
States or to the advantage of any foreign nation" is an additional mens rea requirement in cases
where the accused is charged with disclosures of intangible information, such as oral disclosures
of classified information. See Rosen, 445 F. Supp. 2d at 627 ("[A]dded scienter requirement is
yet another ground for rejecting the defendants' vagueness challenge here."); see also Kim, 808
F. Supp. 2d at 51 (discussing Congress' decision to impose a mens rea requirement for the
communication of "information"); 18 U.S.C. § 793(e). The phrase, when read with the words
immediately preceding it in the statute ("reason to believe could be used"), is more accurately
characterized as a limiting factor, rather than as a phrase inviting uncertainty as to its scope.
In any event, the phrase does not render§ 793(e) unconstitutionally vague because of the
other limitations of the statute. In particular, the statute requires the United States to prove the
accused "willfully" communicated national defense information. 18 U.S.C.§ 793(e). Thus, the
United States must establish beyond a reasonable doubt that the accused had "knowledge that the
conduct [at issue] was unlawful." Bryan v. United States, 524 U.S. 184, 19 1 -92 (1998). The
Supreme Court has repeatedly recognized that "a scienter requirement may mitigate a law' s
vagueness, especially with respect to the adequacy of notice to the complainant that his conduct
is proscribed." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 499
(1982); see also Gonzales v. Carhart, 550 U.S. 124, 149 (2007) ("[S]cienter requirements
alleviate vagueness concerns."). Indeed, this Court held that a "knowing" scienter requirement
"mitigates a law's vagueness especially with respect to actual notice of the conduct proscribed."
Court's Ruling, dated 26 April 2012 (citing United States v. Moyer, 2012 WL 639277 (3rd Cir.
2012)). Moreover, the Supreme Court has held that a willfulness scienter requirement
substantially undercuts any vagueness challenge to a statute's other terms. See United States v.
Ragen, 3 1 4 U.S. 513, 524 (1942). But more importantly for the purposes of this case, the Fourth
Circuit has relied on the "willfulness" scienter requirement in§ 793(d) to reject a vagueness
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challenge to that provision. See Morison, 844 F.2d at 1 07 1 ; see also Gorin, 3 1 2 U.S. at 27-28
(rejecting vagueness challenge based on scienter requirement in statute); Kim, 808 F. Supp. 2d at
54 ("Because the Government must prove that Defendant knew his conduct was unlawful, he
cannot complain that he did not have fair warning that he could be criminally prosecuted for his
actions."). In short, even if there are legitimate vagueness concerns with respect to the phrase
"to the injury of the United States or to the advantage of any foreign nation," they are negated by
the willfulness requirement of§ 793(e).

III.

1 8 U.S.C.§ 793(e) IS NOT SUBSTANTIALLY OVERBROAD IN VIOLATION OF
THE FIRST AMENDMENT.

A law may be invalidated as overbroad under the First Amendment if "a substantial
number of its applications are unconstitutional, judged in relation to the statute's plainly
legitimate sweep." United States v. Stevens, 130 S. Ct. 1 577, 1 587 (20 1 0) (quoting Washington
State Grange v. Washington State Republican Party, 522 US 442, 449 n.6 (2008)). The
overbreadth doctrine is an exception to the generally applicable rules regarding facial challenges,
in that it allows a defendant to raise the First Amendment rights of third parties whose
"constitutionally protected speech may be 'chilled' by the specter of the statute's punishment."
Rosen, 445 F. Supp. 2d at 642 (citing Virginia v. Hicks, 539 U.S. 1 13, 1 1 8- 1 9 (2003)).
"Invalidation for overbreadth is 'strong medicine' that is not to be 'casually employed."'
Williams, 553 U.S. at 293 (quoting Los Angeles Police Dep't v. United Reporting Publishing
Corp. , 528 U.S. 32, 39 ( 1 999)). As such, "[t]he first step in overbreadth analysis is to construe
the challenged statute; it is impossible to determine whether a statute reaches too far without first
knowing what the statute covers." Williams, 553 U.S. at 293. A statute should be construed to
avoid constitutional problems, if possible. See United States v. Ferber, 458 U.S. 747, 769 n.24
( 1 982).
The defense argues that 1 8 U.S.C.§ 793(e) is substantially overbroad because it
"regulates a wide range of speech." Def. Mot. at 6. However, it is not enough to say that a
statute applies broadly. In order for a statute to be invalidated as overbroad, the applications
must be unconstitutional and they must be judged in comparison to the legitimate applications.
See Stevens, 1 30 S. Ct. at 1 587; Rosen, 445 F. Supp. 2d at 643. Like the defense assertion of
impermissible vagueness,§ 793 has endured similar challenges on the basis of substantial
overbreadth. See Rosen, 445 F. Supp. 2d at 643; Morison, 844 F.2d at 1 076. The court in Rosen,
using the analysis discussed above, construed various terms and provisions of§ 793(d) and (e)
and ultimately concluded that the statute was "narrowly and sensibly tailored to serve the
government's legitimate interest in protecting the national security," and judged its effect on
First Amendment freedoms as "neither real nor substantial" in relation to the statute's legitimate
sweep. Rosen, 445 F. Supp. 2d at 643. Similarly, the court in Morison held that there was no
fatal overbreadth with respect to the terms "national defense" and "one not entitled to receive,"
as courts had narrowed the constructions of those terms. See Morison, 844 F.2d at 1 076.
The defense also argues that§ 793(e) "poses substantial dangers to the free speech rights
of reporters who investigate and publish stories on national defense related topics." Def. Mot. at
7. The concern is that a reporter could be subjected to criminal prosecution under the statute if

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the United States proves every element of the statute beyond a reasonable doubt. See Def. Mot.
at 7. Aside from the fact that§ 793(e)'s effect on First Amendment rights has been judged
neither real nor substantial, the Supreme Court tacitly approved such an application of§ 793(e)
in New York Times Co. v. United States, 403 U.S. 7 1 3-the "Pentagon Papers" case. See Rosen,
445 F. Supp. 2d at 638-39.
In Rosen, the defendants were employed by the American Israel Public Affairs
Committee as lobbyists and were charged with conspiring to transmit information relating to the
national defense to those not entitled to receive it, in violation of 1 8 U.S.C.§ 793(g). /d. at 60708. The Rosen defendants argued that the First Amendment bars Congress from punishing
persons for disclosure of national defense information when they do not have a special
relationship with the government. /d. at 637. In considering the contention, the Rosen court
discussed the concurring opinions of Justices Stewart, White, and Marshall in the "Pentagon
Papers" case. !d. at 638. While the Supreme Court was confronted with significant First
Amendment issues raised by their consideration of the constitutionality of a prior restraint on the
press, and ultimately denied the United States' request for an injunction preventing the New
York Times and Washington Post from publishing the contents of the "Pentagon Papers," the
Rosen court noted that the concurring opinions explicitly acknowledged the viability of a
prosecution of the newspapers under applicable criminal law. !d.; see New York Times Co., 403
U.S. at 730 (Stewart, J., concurring); id. at 737 (White, J., concurring); id. at 745 (Marshall, J.,
concurring). As such, the defense argument- that§ 793(e) is fatally overbroad because it
potentially permits the criminal prosecution of a reporter- is without merit. At most,
overbreadth may be an issue when the statute is applied to a certain set of facts, but the
hypothetical itself does not render§ 793(e) substantially overbroad. See Williams, 553 U.S. at
303 ("The 'mere fact that one can conceive of some impermissible applications of a statute is not
sufficient to render it susceptible to an overbreadth challenge."') (quoting Members of City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 ( 1 984)). Thus, for the
reasons stated above, 18 U.S.C.§ 793(e) is not substantially overbroad in violation of the First
Amendment.
CONCLUSION

The United States respectfully requests this Court DENY the defense motion to dismiss
Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II. For the reasons stated above, 18 U.S.C.
§ 793(e) is neither unconstitutionally vague in violation of the Fifth Amendment, nor
substantially overbroad in violation of the First Amendment. Additionally, the United States
joins the defense in their request to provide instructions that further define 18 U.S.C.§ 793(e),
but requests that the Court adhere to the Scheduling Order dated 25 April 2012, which provides
for litigation concerning proposed members instructions in phase 3a.

��
Trial Counsel

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I certify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 24 May 2012.

\\��

T,JA
Trial Counsel

7

21333

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)
)

DEFENSE MOTION TO
DISMISS FOR FAILURE TO
STATE AN OFFENSE:
SPECIFICATIONS 13 AND 14
OF CHARGE II
DATED: 10 May 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by counsel, pursuant to applicable case law and Rule for Courts
Martial (R.C.M.) 907(b)(1)(B), requests this Court to dismiss Specifications 13 and 14 of Charge
II because the Government has failed to allege that PFC Manning’s alleged conduct exceeded
authorized access within the meaning of 18 U.S.C. Section 1030(a)(1).
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. The Defense, as the moving party, bears the burden of this motion by a preponderance of the
evidence pursuant to R.C.M. 905(c)(1)-(2)(A). “A charge or specification shall be dismissed at
any stage of the proceedings if: (A) [t]he court-martial lacks jurisdiction to try the accused for
the offense; or (B) [t]he specification fails to state an offense.” R.C.M. 907(b)(1).
FACTS
3. PFC Manning is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of conduct prejudicial to good order and
discipline and service discrediting, eight specifications of communicating classified information,
five specifications of stealing or knowingly converting government property, and two
specifications of knowingly exceeding authorized access to a government computer, in violation
of Articles 92, 104, and 134, Uniform Code of Military Justice (UCMJ) 10 U.S.C. §§ 892, 904,
934 (2010).
4. In Specification 13 of Charge II, the Government pleads that PFC Manning
did, at or near Contingency Operating Station Hammer, Iraq, between on or about
28 March 2010 and on or about 27 May 2010, having knowingly exceeded
authorized access on a Secret Internet Protocol Router Network computer, and by
1

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means of such conduct having obtained . . . more than seventy-five classified
United States Department of State cables, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted the said
information, to a person not entitled to receive it, with reason to believe that such
information so obtained could be used to the injury of the United States, or to the
advantage of any foreign nation, in violation of 18 U.S. Code Section
1030(a)(1)[.]
Charge Sheet (attached), Specification 13. Specification 14 of the same charge alleges that PFC
Manning
did, at or near Contingency Operating Station Hammer, Iraq, between on or about
15 February 2010 and on or about 18 February 2010, having knowingly exceeded
authorized access on a Secret Internet Protocol Router Network Computer, and by
means of such conduct having obtained . . . a classified Department of State cable
titled “Reykjavik-13”, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted the said information, to a person not
entitled to receive it, with reason to believe that such information so obtained
could be used to the injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section 1030(a)(1)[.]
Id., Specification 14. In its Bill of Particulars, the Defense asked the Government to specify how
exactly it alleges that PFC Manning exceeded authorized access. The Government resisted
providing these particulars. However, during the motions argument, CPT Morrow revealed the
Government’s position on how PFC Manning is alleged to have exceeded authorized access:
MJ: Okay. Government, do you have a theory of a means by which he knowingly
exceeded the unauthorized [sic] access?
ATC1: The means?
MJ: Yes.
ATC1: Your Honor, the government would maintain that PFC Manning had a
user name and a password to a SIPRNET computer while deployed. On certain
occasions when he accessed that computer for certain, you know, to obtain these
documents, he was exceeding authorized access. I can’t – there is no means. I
mean, there is no – I don’t think it’s – a mystery how he got onto the computer. I
think Mr. Coombs is focusing on the [inaudible] diplomacy aspect of it when the
focus should be on when he access [sic] the computer to do certain things.
MJ: So your means is the fact that he accessed the computer to do certain things?
ATC1: Yes, ma’am.
MJ: All right. Are those things that he did part of the investigation or he –
2

21335

ATC1: They are part of the specification, Your Honor. Obtaining these cables
and transmitting to Wikileaks.
Oral Argument, Unauthenticated Transcript, 23 February 2012, pp. 71-72 [hereinafter Oral
Argument, Unauthenticated Transcript].
WITNESSES/EVIDENCE
5. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this court to consider the following evidence in support of the Defense’s
motion:
a. Charge Sheet (attached);
b. Oral Argument, Unauthenticated Transcript, 23 February 2012.
LEGAL AUTHORITY AND ARGUMENT
6. To state an offense under 18 U.S.C. Section 1030(a)(1), the Government must allege that the
accused either knowingly accessed a computer without authorization or that he knowingly
exceeded authorized access in accessing the information in question. The Government in this
case has alleged that PFC Manning knowingly exceeded his authorized access when, despite
being authorized to use the computer, he accessed certain information for an improper purpose
and/or in violation of the governing terms of use, and disclosed the information to a person not
authorized to receive it.
7. The plain language of Section 1030(e)(6) clearly indicates that a person exceeds authorized
access when he or she uses authorized access to a computer to obtain or alter information in the
computer that he or she is not entitled to obtain or alter. 18 U.S.C. § 1030(e)(6). Neither Section
1030(e)(6) nor Section 1030(a)(1) gives any indication that an accused’s purpose in accessing
the computer or the information in question is in any way relevant to the “exceeding authorized
access” inquiry. See id. § 1030(a)(1), (e)(6). It is clear from the plain language of Section
1030(a)(1) that PFC Manning did not exceed authorized access within the meaning of the statute.
PFC Manning had full authority to access the government computer(s) at issue and at no time did
he obtain or alter information that he was not entitled to obtain or alter.
8. The essence of the Government’s theory is either: a) that PFC Manning exceeded authorized
access when he allegedly accessed information for an improper purpose, viz., to give the
information to someone not authorized to receive it; or b) that PFC Manning exceeded
authorized access when he allegedly accessed, stored and disclosed information in contravention
of the Army’s Acceptable Use Policy (AUP).1 Either way, the Government fails to state an
1

This latter theory was presented by the Government at the Article 32 hearing.

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offense under Section 1030(a)(1).2 Under Section 1030(a)(1), an accused’s purpose in accessing
the computer is irrelevant, as is the question of whether the accused violated the employer’s
terms of use. The inquiry under Section 1030(a)(1) is strictly limited to whether the accused had
authority to access the information accessed. Other sections of federal criminal law or the UCMJ
may criminalize PFC Manning’s alleged improper storing or dissemination of information – but
not Section 1030(a)(1).
9. Additionally, interpreting the term “exceeds authorized access” to include instances where a
person accesses information for an improper purpose or where a person violates the terms of use
of that access poses serious constitutional concerns for at least one provision of the statute.3
Therefore, this expansive interpretation must be rejected.
10. Because the Government has failed to allege that PFC Manning “exceeded authorized
access” within the meaning of Section 1030(a)(1), the charge should be dismissed for failure to
state an offense.
A.

Under the Plain Language of 18 U.S.C. Section 1030(a)(1), PFC Manning Did Not
Exceed His Authorized Access

11. As outlined in United States v. Starr, the proper inquiry regarding the legal meaning of a
statute is as follows:
It is the function of the legislature to make the laws and the duty of judges to
interpret them. 2A Norman J. Singer, Sutherland Statutory Construction § 45.03
(4th ed. 1984). Judges should interpret a statute so as to carry out the will of the
legislature. United States v. Dickenson, 20 C.M.R. 154, 165 (C.M.A. 1955).
Otherwise, they violate the principle of the separation of powers. Singer, supra, §
45.05. “If the words used in the statute convey a clear and definite meaning, a
court has no right to look for or to impose a different meaning.” Dickenson, 20
C.M.R. at 165. Thus, in interpreting a statute, we employ the following process:
(1) Give the operative terms of the statute their ordinary meaning; if the terms are
unambiguous, the inquiry is over; (2) If the operative terms of the statute are
2

If the Government claims, as it did with the Motion to Dismiss the Article 104 Offense, that the charges should not
be dismissed because the specification is sufficient, the Defense would like to clarify that its argument is not that the
specification is deficient; it is that the theory underlying the specification is deficient. This is appropriately styled as
a motion to dismiss for failure to state an offense. See, e.g., United States v. Nosal (Nosal III), ___ F.3d ___, No.
10-10038, 2012 WL 1176119, at *8 (9th Cir. April 10, 2012) (en banc) (holding that the district court’s dismissal of
the counts of the indictment alleging violations of Section 1030 was proper because the Government’s theory of
“exceeds authorized access” was erroneous).
3
The term “exceeds authorized access” or some derivative thereof appears in several provisions of Section 1030.
See, e.g., 18 U.S.C. § 1030(a)(1) (“exceeding authorized access”); id. § 1030(a)(2) (“exceeds authorized access”);
id. § 1030(a)(4) (same); id. § 1030(a)(7)(B) (“in excess of authorization” and “exceeding authorized access”). These
phrases are nearly identical and “identical words and phrases within the same statute should normally be given the
same meaning.” Nosal III, 2012 WL 1176119, at *4 (quoting Powerex Corp. v. Reliant Energy Servs., Inc., 551
U.S. 224, 232 (2007)) (internal quotations omitted). Thus, the interpretation of the term “exceeds authorized access”
contained in Section 1030(e)(6) applies to all variants of the term used, including “exceeding authorized access” in
Section 1030(a)(1). See id. (“Congress obviously meant ‘exceeds authorized access’ to have the same meaning
throughout [S]ection 1030.”).

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ambiguous, then we examine the purpose of the statute as well as its legislative
history; and (3) If a reasonable ambiguity still exists, then we apply the rule of
lenity and resolve the ambiguity in favor of the accused. See United States v.
Ferguson, 40 M.J. 823, 830 (N.M.C.M.R. 1994).
51 M.J. 528, 532 (A.F. Ct. Crim. App. 1999); see also United States v. McGuinness, 33 M.J. 781,
784-85 (N.M.C.M.R. 1991) (“First, a court should give all the terms used in the statute their
ordinary meaning. Second, if a possible ambiguity exists in the statute when a term’s ordinary
meaning is used, then a court must examine the legislative history and motivating policies of
Congress in enacting the statute to resolve the ambiguity. And finally, if after applying steps one
and two, a reasonable doubt still exists about a statute’s intended scope, then the Court will apply
the rule of lenity and resolve the ambiguity in favor of the appellant.”).
12. The term “exceeds authorized access” in Section 1030 has a clear legal meaning. A person
exceeds authorized access under Section 1030(a)(1) when, despite being authorized to use the
computer, the accused uses his access to the computer to obtain or alter information in the
computer that he is not entitled to obtain or alter. Section 1030 is thus concerned only with
bypassing technical restrictions on access, not the improper purpose for which one has accessed
the information. Alternatively, if this Court determines that the statutory language is ambiguous
(which the Defense believes it is not), then the purpose of the statute and the legislative history
clearly indicate that Section 1030 was not intended to address misuse of information, only
misuse of the computer, in the sense of hacking or bypassing technical restrictions. If, after a
review of the plain language and legislative history, the Court concludes that there is still
ambiguity, then that ambiguity must be resolved in favor of the accused under the rule of lenity.
13. Section 1030(a)(1) punishes:
Whoever -(1) having knowingly accessed a computer without authorization or exceeding
authorized access, and by means of such conduct having obtained information that
has been determined by the United States Government . . . to require protection
against unauthorized disclosure for reasons of national defense or foreign
relations . . . 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
willfully communicates, delivers, transmits, or causes to be communicated,
delivered, or transmitted, or attempts to communicate, deliver, transmit or cause
to be communicated, delivered, or transmitted the same to any person not entitled
to receive it, or willfully retains the same and fails to deliver it to the officer or
employee of the United States entitled to receive it[.]
18 U.S.C. § 1030(a)(1). In this case, the Government has proceeded under the theory that PFC
Manning knowingly exceeded his authorized access in accessing certain information and
disclosing that information to persons not authorized to receive it, in contravention of the
Government’s Acceptable Use Policy and/or that PFC Manning accessed information for an
improper purpose. Notably, the Government has not alleged that PFC Manning accessed a
5

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computer that he was not entitled to access. Nor has the Government alleged that PFC Manning
accessed information on the computer that he was not entitled to access.
14. Congress has provided a definition for “exceeds authorized access” in Section 1030(e)(6):
“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 accesser is not entitled so to
obtain or alter[.]” Id. § 1030(e)(6).4 This language is plain and unambiguous. See United States
v. Inthavong, 48 M.J. 628, 630 (A. Ct. Crim. App. 1998) (“[S]tatutory ambiguity may not be
manufactured as a device to defeat manifest congressional intent.”). An accused exceeds
authorized access under Section 1030(a)(1) when, despite being authorized to use the computer,
the accused uses his access to the computer to obtain or alter information in the computer that he
is not entitled to obtain or alter.
15. For instance, if PFC Manning had used his government computer (to which he has
authorized access) to hack into the White House server and obtain President Obama’s official emails, he would presumably be “exceeding authorized access.” Likewise, if PFC Manning had
used his government computer (to which he has authorized access) to change the contents of
diplomatic cables on the server, he would be “exceeding authorized access.” In short, the section
is intended to punish those who, while authorized to use the computer, bypass technical
restrictions and use the computer to access or alter information that they are not allowed to
access or alter. The section does not extend to the situation where the user has authorization to
access the information in question, but somehow misuses or misappropriates that information.
See United States v. Nosal (Nosal III), ___ F.3d ___, No. 10-10038, 2012 WL 1176119, at *7-8
(9th Cir. April 10, 2012) (en banc); United States v. Aleynikov, 737 F. Supp. 2d 173, 192
(S.D.N.Y. 2010); Orbit One Commc’ns, Inc. v. Numerex Corp., 692 F. Supp. 2d 373, 385
(S.D.N.Y. 2010) (“The plain language of [Section 1030] supports a narrow reading. [Section
1030] expressly prohibits improper ‘access’ of computer information. It does not prohibit
misuse or misappropriation.”); see also Xcedex, Inc. v. VMware, Inc., No. 10-3589 (PJS/JJK),
2011 WL 2600688, at *4 (D. Minn. June 8, 2011) (“[Section 1030] itself defines ‘exceeds
authorized access’ as ‘access[ing] a computer with authorization and [using] such access to
obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.’
18 U.S.C. § 1030(e)(6). Therefore, ‘without authorization’ and ‘exceed[ing] authorized access’
depend on the ‘unauthorized use of access,’ not on the ‘unauthorized use of information.’”
(emphasis in original)); Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962, 965 (D. Ariz. 2008)
(“[T]he plain language of [Section] 1030(a)(2), (4), and (5)(A)(iii) target ‘the unauthorized
procurement or alteration of information, not its misuse or misappropriation.’”).
16. PFC Manning clearly had authorization to access the government computers in question.
4

Section 1030(a)(1) today uses the phrase “exceeding authorized access” instead of “exceeds authorized access.”
18 U.S.C. § 1030(a)(1). This subsection was amended in 1996 by substituting the term “exceeding” for the term
“exceeds,” which had been used in that subsection since 1986. See Economic Espionage Act of 1996, Pub. L. No.
104-294, § 201(1)(A)(ii), 110 Stat. 3488, 3491. The change in phrasing was likely grammatical only and the
definition of “exceeds authorized access” in Section 1030(e)(6) is likely still applicable to the term “exceeding
authorized access” in Section 1030(a)(1). See S. Rep.104-357 (1996) (“The amendment specifically covers the
conduct of a person who deliberately breaks into a computer without authority, or an insider who exceeds authorized
access, and thereby obtains classified information and then communicates the information to another person, or
retains it without delivering it to the proper authorities.” (emphasis supplied)).

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Thus, the only remaining question is whether the Government alleges that PFC Manning
“exceed[ed] authorized access” within the meaning of Section 1030 – i.e. whether he “obtain[ed]
or alter[ed] information in the computer that [he was] not entitled so to obtain or alter[.]” 18
U.S.C. § 1030(e)(6). The Government has not alleged that PFC Manning used his access to
obtain information that he was not entitled to obtain. On the contrary, the Government will
concede that PFC Manning was authorized to obtain each and every piece of information that he
allegedly accessed. Similarly, the Government has not alleged that PFC Manning altered any of
the information that he allegedly accessed. Instead, the Government alleges that because PFC
Manning had an improper purpose in accessing the information that he had full permission to
access, he has exceeded authorized access within the meaning of the statute. This is an incorrect
reading of the term “exceeds authorized access” – and one which conflicts with the plain
meaning of the statute. See Walsh Bishop Assocs., Inc. v. O’Brien, No. 11-2673 (DSD/AJB),
2012 WL 669069, at *3 (D. Minn. Feb. 28, 2012) (“The language of [Section] 1030(a)(2) does
not support the interpretation of Walsh Bishop. Instead, Walsh Bishop's interpretation requires
the court to rewrite the statute to replace the phrase ‘to use such access to obtain or alter
information that the accesser is not entitled so to obtain or alter’ with ‘to use such information in
a manner that the accesser is not entitled so to use.’ But subsection (a)(2) is not based on use of
information; it concerns access. Indeed, the language of subsection (a)(1) shows that Congress
knows how to target the use of information when it intends to do so.”); United States v. Zhang,
No. CR-05-00812 RMW, 2010 WL 4807098, at *3 (N.D. Cal. Nov. 19, 2010) (“Nonetheless, a
plain reading of [S]ection 1030(e)(6)’s definition . . . compels a different conclusion. An
individual ‘exceeds authorized access’ if he or she has permission to access a portion of the
computer system but uses that access to ‘obtain or alter information in the computer that [he or
she] is not entitled so to obtain or alter.’ As the court in Norsal [sic] explained, ‘there is simply
no way to read that definition to incorporate policies governing use of information unless the
word alter is interpreted to mean misappropriate.’” (citations omitted)).
17. The plain language of “exceeds authorized access” is further supported by looking at the
specification itself. The Government alleges:
In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
Contingency Operating Station Hammer, Iraq, between on or about 28 March
2010 and on or about 27 May 2010, having knowingly exceeded authorized
access on a Secret Internet Protocol Router Network computer, and by means of
such conduct having obtained information that has been determined by the United
States government pursuant to an Executive Order or statute to require protection
against unauthorized disclosure for reasons of national defense or foreign
relations, to wit: more than seventy-five classified United States Department of
State cables[.]
Charge Sheet, Specification 13 (emphasis supplied). It is clear that “exceeding authorized
access” is different from, and a predicate to, “obtaining information.” If the term “exceeded
authorized access” is interpreted as the Government suggests, the charge would be redundant and
nonsensical:
In that Private First Class Bradley E. Manning, U.S. Army, did, at or near
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Contingency Operating Station Hammer, Iraq, between on or about 28 March
2010 and on or about 27 May 2010, having knowingly [“accessed that computer
… to obtain these documents,” see Oral Argument, Unauthenticated Transcript,
supra] on a Secret Internet Protocol Router Network computer, and by means of
such conduct having obtained information that has been determined by the United
States government pursuant to an Executive Order or statute to require protection
against unauthorized disclosure for reasons of national defense or foreign
relations, to wit: more than seventy-five classified United States Department of
State cables[.]
Charge Sheet, Specification 13 (alteration supplied). Thus read, the charge does not make sense
since “exceeding authorized access” is conflated with obtaining documents for an improper
purpose, which is the next part of the charge (“by means of such conduct having obtained
information”). Thus, the exceeding authorized access cannot be the same as “obtain[ing]
information” or the specification falls apart. This provides further evidence that the plain
meaning of the statute is clear: Section 1030 asks only whether the accused had authorized
access to the computer and information in question. It does not contemplate an inquiry into what
an accused otherwise does with properly accessed information.
B.

The Legislative History of 18 U.S.C. Section 1030 Clearly Shows that “Exceeding
Authorized Access” Does Not Involve an Inquiry into the Purposes for Which the
Information is Used

18. The legislative history of Section 1030 leaves no doubt that “exceeding authorized access” is
strictly limited to the question of whether the accused who had authorized access to the
computer, accessed information that he was not entitled to access. It does not encompass an
analysis into the purposes for which information accessed with authorization is ultimately used.
Otherwise stated, the section is intended to criminalize intruders who trespass on computer
networks, in the sense of circumventing technological restrictions on access. It is not intended to
criminalize the acts of those persons who, while authorized to access the information in question,
happen to use computers in carrying out an underlying criminal offense.5 In 2008, the
Congressional Research Service issued a report which analyzed Section 1030 and specifically
acknowledged that the statute “outlaws conduct that victimizes computers. It is a computer
security law. It protects computers in which there is a federal interest.” Charles Doyle, Cong.
Research Service, Cybercrime: A Sketch of 18 U.S.C. 1030 and Related Federal Criminal Laws
1 (2008). Just as most modern jurisdictions have trespass laws, intended to protect real property
– as opposed to larceny laws protecting the chattel located on that property – Section 1030 was
passed to protect computers, not the information located on those computers.
19. Section 1030 was originally enacted in 1984. Act of Oct. 12, 1984, Pub. L. No. 98-473, §§
2101-2103, 98 Stat. 1837, 2190-92. In that 1984 version, Section 1030(a)(1) punished whoever
5

Indeed, this would seem to be a common sense proposition. An act which is carried out through the use of a
computer is not more culpable or criminal than one which is carried out without the use of a computer. That is, the
alleged disclosure of documents to WikiLeaks through a computer should not carry a greater penalty than the
alleged disclosure of paper documents to the same organization. The use of the computer in carrying out the alleged
offense should not result in greater legal punishment.

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knowingly accesses a computer without authorization, or having accessed a
computer with authorization, uses the opportunity such access provides for
purposes to which such authorization does not extend, and by means of such
conduct obtains information that has been determined by the United States
Government . . . to require protection against unauthorized disclosure for reasons
of national defense or foreign relations . . . with the intent or reason to believe that
such information so obtained is to be used to the injury of the United States, or to
the advantage of any foreign nation.
Id. § 2102(a), 98 Stat. 2190 (emphasis supplied). In 1986, Congress replaced the phrase “or
having accessed a computer with authorization, uses the opportunity such access provides for
purposes to which such authorization does not extend” with the phrase “or exceeds authorized
access.” Computer Fraud and Abuse Act of 1986, Pub. L. No. 99-474, § 2(c), 100 Stat. 1213. In
the same Act, Congress added to Section 1030 the definition of “exceeds authorized access” that
is presently codified at Section 1030(e)(6). Id. § 2(g)(4); see 18 U.S.C. § 1030(e)(6).
20. This significant change in language in Section 1030(a)(1) belies any argument that the term
“exceeds authorized access” extends to situations where an accused who has authorization to use
the computer uses the access for purposes to which the authorization does not extend. Clearly,
Congress was quite capable of drafting language which would criminalize using a computer or
the information contained therein in a way that is inconsistent with the governing terms of use or
the computer owner’s interests. The language in the prior statute covered this situation perfectly;
it criminalized the scenario where a person “uses the opportunity that such [authorized] access
provides for purposes to which such authorization does not extend.” Pub. L. No. 98-473, § 2102,
98 Stat. at 2190; see Walsh Bishop Assocs., Inc., 2012 WL 669069, at *3 (“Further, the
legislative purpose and history supports the plain meaning of the statute. Congress enacted
[Section 1030] to deter ‘the criminal element from abusing computer technology in future
frauds.’ H.R. Rep. No. 98–894, at 4 (1984), reprinted in 1984 U.S.C.C.A.N. 3689, 3690. As
originally enacted, [Section 1030] applied to a person who (1) knowingly accessed without
authorization or (2) ‘having accessed a computer with authorization, uses the opportunity such
access provides for purposes to which such authorization does not extend.’ Pub. L. No. 98–473,
§ 2102, 98 Stat. 2190, 2190–91 (1984). Congress amended the statute by replacing the latter
means of access with the phrase ‘exceeds authorized access.’ See Pub. L. No. 99–474, § 2, 100
Stat. 1213, 1213 (1986). The stated reason for the amendment was to ‘eliminate coverage for
authorized access that aims at purposes to which such authorization does not extend.’ See S.
Rep. No. 99–432, at 21 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2495 (internal quotation
marks omitted). As a result, Congress amended the statute to remove use as a basis for
exceeding authorization.”); Condux Int'l, Inc. v. Haugum, No. 08-4824 ADM/JSM, 2008 WL
5244818, at *5 (D. Minn. Dec. 15, 2008) (“Had Congress [under Section 1030] intended to target
how a person makes use of information, it would have explicitly provided language to that
effect.”).
21. In the Senate report on the 1986 amendment of this phrase, Senators Mathias and Leahy
commented favorably on the substitution of “exceeds authorized access” for the pre-1986
language of Section 1030:
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[The 1986 Amendments] would eliminate coverage for unauthorized access that
aims at “purposes to which such authorization does not extend.” This removes
from the sweep of the statute one of the murkier grounds of liability, under which
a Federal employee’s access to computerized data might be legitimate in some
circumstances, but criminal in other (not clearly distinguishable) circumstances
that might be held to exceed his authorization.
S. Rep. No. 99-432, at 21, reprinted in 1986 U.S.C.C.A.N. at 2494-95; 6 see also Aleynikov, 737
F. Supp. 2d at 192-93 n.23 (discussing legislative history behind 1986 amendments to the
language of Section 1030); Shamrock Foods, 535 F. Supp. 2d at 966 (“[T]he legislative history
confirms that [Section 1030] was intended to prohibit electronic trespassing, not the subsequent
use or misuse of information.”); Int’l Ass’n of Machinists & Aerospace Workers v. WernerMatsuda, 390 F. Supp. 2d 479, 499 n.12 (D. Md. 2005) (explaining the purpose of the change in
legislative language).
22. Additionally, when Congress amended Section 1030(a)(1) in 1996, it helpfully clarified the
interplay between that section and the espionage statutes:
Although there is considerable overlap between 18 U.S.C. [Section] 793(e) and
[S]ection 1030(a)(1), as amended by the NII Protection Act, the two statutes
would not reach exactly the same conduct. Section 1030(a)(1) would target those
persons who deliberately break into a computer to obtain properly classified
Government secrets then try to peddle those secrets to others, including foreign
governments. In other words, unlike existing espionage laws prohibiting the theft
and peddling of Government secrets to foreign agents, [S]ection 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. In this
sense then, it is the use of the computer which is being proscribed, not the
unauthorized possession of, access to, or control over the classified information
itself.
S. Rep. No. 104-357 (1996) (emphases supplied). As this passage makes clear, a person’s intent
in accessing the computer (e.g., to steal government secrets) is entirely distinct from the inquiry
of whether that person has authorization to access the computer or information in question (i.e.
whether that person is in essence “breaking into” that computer). A purpose to steal government
information may be relevant to a prosecution under 18 U.S.C. Section 793(e), which prohibits
theft and peddling of government secrets. However, that purpose cannot determine whether a
person has “broken into” a computer by accessing it without authority or by accessing
information in excess of his authority.
6

By way of elaboration, Congress never actually intended to give the Computer Crimes Fraud Act such expansive
interpretation. Senators Mathias and Leahy appended their own statement to the Report and explained in more
detail the reason for the 1986 amendments. They explained how the original version of the CFAA had been passed
in haste, as part of a legislative rider. See S. Rep. No. 99-432, at 20-21, reprinted in 1986 U.S.C.C.A.N. at 2494. As
a result, in 1984, the House had never voted on a series of narrowing amendments, which had been unanimously
approved by the Senate. The purpose of the 1986 amendments was to fix the shortcomings of the original version.
See id. at 20-22.

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23. That Congress intended for Section 1030 to criminalize computer crimes, and not the
underlying criminal or tortious conduct carried out on the computer, is readily apparent from
looking at the full name of the statute – the Computer Fraud and Abuse Act (CFAA). The
primary purpose of the CFAA “was to create a cause of action against computer hackers (e.g.,
electronic trespassers).” Int’l Ass’n of Machinists & Aerospace Workers, 390 F. Supp. 2d at 495
(quoting Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. Supp. 2d 817, 820 (E.D.
Mich. 2000)) (internal quotations omitted). As the House Report explained, the bill was aimed
largely at hackers who “trespass into” computers: “[T]he conduct prohibited is analogous to that
of ‘breaking and entering’ rather than using a computer . . . in committing the offense.” H.R.
Rep. No. 98-894, at 20 (1984), reprinted in 1984 U.S.C.C.A.N. 3689, 3706. As Professor Orin
Kerr argues:
[T]he available evidence suggests that legislators mostly saw such statutes as
doing for computers what trespass and burglary laws did for real property. For
example, the House Report on the first federal computer crime legislation passed
in 1984 noted that “[S]ection 1030 deals with an ‘unauthorized access’ concept of
computer fraud rather than the mere use of a computer. Thus, the conduct
prohibited is analogous to that of ‘breaking and entering’ rather than using a
computer (similar to the use of a gun) in committing the offense.” Several state
statutes incorporated this concept into the titles of their computer crime statutes,
labeling the new unauthorized access crimes as crimes of “Computer Trespass.”
The legislative histories of computer crime laws also regularly refer to the activity
prohibited by unauthorized access statutes as computer trespasses or “breaking
into computer systems.”
Orrin S. Kerr, Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer
Misuse Statutes, 78 N.Y.U. L. Rev. 1596, 1617-18 (2003) [hereinafter Kerr, Cybercrime’s
Scope] (footnotes omitted).
24. Thus, the legislative history of both: a) the term “exceeds authorized access” and; b) the
CFAA as a whole, clearly reveal what Congress intended when it enacted the statute. It intended
that the section would criminalize those who strayed beyond the technical authorization they
were given. It did not intend to criminalize those who used a computer for an improper purpose
or in contravention of the governing terms of use, even if that use amounted to a criminal
offense.
C.

Case Law Supports the View that An Accused’s Purpose in Accessing the Computer
or the Information is Entirely Irrelevant to Whether an Accused “Exceeded
Authorized Access” Under 18 U.S.C. Section 1030(a)(1)

25. A large number of courts have appropriately applied the plain meaning of Section 1030 and
thus distinguished between two very distinct scenarios: exceeding authorized access and
exceeding authorized use. See Nosal III, 2012 WL 1176119, at *8; Aleynikov, 737 F. Supp. 2d at
192; Zhang, 2010 WL 4807098, at *3. This interpretation of “exceeds authorized access” has
been adopted in the civil context as well. See, e.g., Walsh Bishop Assocs., Inc., 2012 WL
11

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669069, at *2-3; Xcedex, Inc., 2011 WL 2600688, at *4; Océ N. Am., Inc. v. MCS Servs., Inc.,
748 F. Supp. 2d 481, 485-87 (D. Md. 2010); AtPAC, Inc. v. Aptitude Solutions, Inc., 730 F. Supp.
2d 1174, 1181 (E.D. Cal. 2010); Univ. Sports Publ’ns Co. v. Playmakers Media Co., 725 F.
Supp. 2d 378, 283-85 (S.D.N.Y. 2010); Lewis-Burke Assocs. LLC v. Widder, 725 F. Supp. 2d
187, 192-94 (D.D.C. 2010); Orbit One Commc’ns, Inc., 692 F. Supp. 2d at 385-86; Bell
Aerospace Servs., Inc. v. United States Aero Servs., Inc., 690 F. Supp. 2d 1267, 1272 (M.D. Ala.
2010) (“‘Exceeds authorized access’ should not be confused with exceeds authorized use.”);
ReMedPar, Inc. v. Allparts Med., LLC, 683 F. Supp. 2d 605, 610-13 (M.D. Tenn. 2010); BroTech Corp. v. Thermax, Inc., 651 F. Supp. 2d 378, 406-07 (E.D. Pa. 2009); Jet One Group, Inc.
v. Halcyon Jet Holdings, Inc., No. 08-CV-3980 (JS)(ETB), 2009 WL 2524864, at *5-6
(E.D.N.Y. Aug. 14, 2009); State Analysis, Inc. v. Am. Fin.. Servs. Assoc., 621 F. Supp. 2d 309,
315-17 (E.D. Va. 2009); Condux Int'l, Inc., 2008 WL 5244818, at *4-6; Int’l Ass’n of Machinists
& Aerospace Workers, 390 F. Supp. 2d at 498-99.
26. This proper interpretation was most recently adopted by the en banc Ninth Circuit Court of
Appeals in Nosal III. In Nosal III, employees of the defendant’s former employer, using their
accounts to access the employer’s computer system, provided the defendant with trade secrets
and other proprietary information of the employer. 2012 WL 1176119, at *1. The employer
placed several limitations on its employees’ access of its system, including a restriction on the
use or disclosure of all information available on that system, except for legitimate company
business. Id. at *1 & n.1. The defendant was charged with aiding and abetting the employees’
violations of Section 1030(a)(4).7 Id. at *1. The defendant moved to dismiss the counts of the
indictment alleging violations of Section 1030(a)(4), “arguing that the statute targets only
hackers, not individuals who access a computer with authorization but then misuse information
they obtain by means of such access.” Id. The district court ultimately agreed with the
defendant’s position and granted the motion to dismiss. Id.
27. A majority of a panel of three judges of the Ninth Circuit reversed, holding that “an
employee ‘exceeds authorized access’ under [Section] 1030 when he or she violates the
employer’s access restrictions – including use restrictions.” United States v. Nosal (Nosal I), 642
F.3d 781, 785 (9th Cir. 2011), reh’g en banc granted, 661 F.3d 1180 (9th Cir. 2011). To support
its expansive interpretation, the majority focused on one word in the definition of “exceeds
authorized access” provided in Section 1030(e)(6): “so.” See Nosal I, 642 F.3d at 785-86. The
court reasoned that the word “‘[s]o’ in this context means ‘in a manner or way that is indicated or
suggested.’” Id. at 785 (quoting Webster’s Third New Int’l Dictionary 2159 (Philip Babcock
Gove, ed. 2002)). In her dissent, Judge Campbell identified two major flaws with the panel
opinion: its reliance on the word “so” was misplaced, and its interpretation of the term “exceeds
authorized access” rendered at least one provision of Section 1030 unconstitutionally vague. Id.
at 789-91 (Campbell, J., dissenting).
7

Section 1030(a)(4) punishes whoever
knowingly and with intent to defraud, accesses a protected computer without authorization, or
exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains
anything of value, unless the object of the fraud and the thing obtained consists only of the use of
the computer and the value of such use is not more than $5,000 in any 1-year period[.]

18 U.S.C. § 1030(a)(4) (emphasis supplied).

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28. After granting the defendant’s petition for rehearing en banc and withdrawing the panel
opinion, see United States v Nosal (Nosal II), 661 F.3d 1180, 1180 (9th Cir. 2011), the en banc
Ninth Circuit, in a 9-2 opinion authored by Chief Judge Kozinski, affirmed the district court’s
dismissal of the Section 1030 counts of the defendant’s indictment. See Nosal III, 2012 WL
1176119, at *8. The court held that “‘exceeds authorized access’ in the CFAA is limited to
violations of restrictions on access to information, and not restrictions on its use.” Id. (emphases
in original). The Nosal III Court found this interpretation of “exceeds authorized access” to be
most consistent with the statutory text and structure of the CFAA, as well as the legislative
history of that statute.
29. The court first explained why the word “so” in Section 1030(e)(6)’s definition of “exceeds
authorized access” could not bear the weight the Government and the panel majority assigned to
it:
The government’s interpretation would transform the CFAA from an anti-hacking
statute into an expansive misappropriation statute. This places a great deal of
weight on a two-letter word that is essentially a conjunction. If Congress meant
to expand the scope of criminal liability to everyone who uses a computer in
violation of computer use restrictions – which may well include everyone who
uses a computer – we would expect it to use language better suited to that
purpose.
Id. at *2. Moreover, “Congress could just as well have included ‘so’ as a connector or for
emphasis.” Id.
30. The Nosal III Court also reasoned that interpreting the phrase “exceeds authorized access” to
only proscribe violations of access restrictions, and not violations of use restrictions, would be
most consistent with the structure of the CFAA as a whole. Id. at *3-4. Because the phrase is
used in several different provisions of the CFAA, the court was mindful that its interpretation of
the phrase would control each provision of Section 1030 in which the phrase appears. See id. at
*4. The court was troubled with the effect the Government’s interpretation would have on one
particular provision of the CFAA:
Subsection 1030(a)(2)(C) requires only that the person who “exceeds authorized
access” have “obtain[ed] . . . information from any protected computer.” Because
“protected computer” is defined as a computer affected by or involved in
interstate commerce – effectively all computers with Internet access – the
government’s interpretation of “exceeds authorized access” makes every violation
of a private computer use policy a federal crime.
Id. at *3 (ellipsis and alteration in original). This scenario would pose serious notice and
arbitrary enforcement concerns. See id. at *3-6 (discussing these concerns); see also Part E,
infra (explaining the Nosal III Court’s discussion of these concerns).

13

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31. Finally, the Nosal III Court determined that its interpretation was most consistent with the
CFAA’s overarching purpose and legislative history. Nosal III, 2012 WL 1176119, at *3.
Congress’s primary aim in enacting the CFAA was to target computer hacking. Id. The court
explained how its interpretation of the term “exceeds authorized access” kept this purpose in
mind:
[I]t is possible to read both prohibitions as applying to hackers: “[W]ithout
authorization” would apply to outside hackers (individuals who have no
authorized access to the computer at all) and “exceeds authorized access” would
apply to inside hackers (individuals whose initial access to a computer is
authorized but who access unauthorized information or files). This is a perfectly
plausible construction of the statutory language that maintains the CFAA’s focus
on hacking rather than turning it into a sweeping Internet-policing mandate.
Id. (emphases in original). The court went on to note that Congress’s replacement of the phrase
“having accessed a computer with authorization, uses the opportunity such access provides for
purposes to which such authorization does not extend” with the phrase “exceeds authorized
access” further supported its interpretation of that term, and further undermined the
Government’s proposed interpretation. Id. at *3 n.5.
32. The United States District Court for the Southern District of New York reached the same
conclusion in United States v. Aleynikov. In Aleynikov, the defendant, a Goldman Sachs
computer programmer copied, compressed, encrypted and transferred hundreds of thousands of
lines of Goldman Sachs’ source code, which he later gave to his new employer. 737 F. Supp. 2d
at 174-75. The defendant was authorized to access the Goldman computer he accessed and to
access the source code he accessed, though Goldman Sachs required each computer programmer
to sign a confidentiality agreement and limited access to its source code to those employees who
have reason to access it. Id. at 175, 190-91. The defendant was indicted for unauthorized access
and exceeding authorized access under Section 1030(a)(2)(C). Id. at 190. The defendant moved
to dismiss this count of the indictment, arguing that Section 1030 “does not encompass an
employee’s misuse or misappropriation of information that the employee has authority to
access.” Id. at 191.
33. The court granted the defendant’s motion to dismiss the Section 1030(a)(2)(C) count of the
indictment and held that “a person who ‘exceeds authorized access’ has permission to access the
computer, but not the particular information on the computer that is at issue.” Id. at 191-92. The
court explained that:
Section 1030(a)(2)(C) therefore addresses only the unauthorized procurement or
alteration of information. The phrase[ ] . . .“exceeds authorized access” cannot be
read to encompass an individual’s misuse or misappropriation of information to
which the individual was permitted access. What use an individual makes of the
accessed information is utterly distinct from whether the access was authorized in
the first place. The Government’s theory that [Section 1030] is violated
whenever an individual uses information on a computer in a manner contrary to

14

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the information owner’s interest would therefore require a departure from the
plain meaning of the statutory text.
Id. at 192 (emphasis supplied). The court further explained that its interpretation was consistent
with the statutory text, the overall purpose and structure of Section 1030, and the legislative
history of the section. Id. at 192-93 & n.23.
34. The Ninth Circuit also reached a similar result in LVRC Holdings LLC v. Brekka, 581 F.3d
1127 (2009).8 In that case, an employer brought an action against its former employee under
Section 1030(g),9 alleging that the former employee exceeded authorized access when he
emailed documents to himself and his wife “to further his own personal interests, rather than the
interests of [his employer].” Brekka, 581 F.3d at 1132; see id. at 1129-30. The Court rejected
the plaintiff’s reading of the phrase “exceeds authorized access:”
No language in the CFAA supports LVRC’s argument that authorization to use a
computer ceases when an employee resolves to use the computer contrary to the
employer’s interest. Rather, the definition of “exceeds authorized access” in
[Section] 1030(e)(6) indicates that Congress did not intend to include such an
implicit limitation in the word “authorization.” Section 1030(e)(6) provides: “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
accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6) . . . . In other
words, for purposes of the CFAA, when an employer authorizes an employee to
use a company computer subject to certain limitations, the employee remains
authorized to use the computer even if the employee violates those limitations. It
is the employer’s decision to allow or to terminate an employee’s authorization to
access a computer that determines whether the employee is with or “without
authorization.”
This leads to a sensible interpretation of [Sections] 1030(a)(2) and (4), which
gives effect to both the phrase “without authorization” and the phrase “exceeds
authorized access”: a person who “intentionally accesses a computer without
authorization,” §§ 1030(a)(2) and (4), accesses a computer without any
permission at all, while a person who “exceeds authorized access,” id., has
permission to access the computer, but accesses information on the computer that
the person is not entitled to access.
Id. at 1133. This reasoning was also echoed by the court in International Association of
Machinists & Aerospace Workers, where the plaintiff argued that the defendant, a union officer,
exceeded her authorization to use the union computer when she violated the terms of use to
access a membership list with the purpose to send it to a rival union, and not for legitimate union
8

Although Brekka is a civil case, it involves the interpretation of a criminal statute. As the Brekka court itself notes,
its interpretation “is equally applicable in the criminal context.” 581 F.3d at 1134. With that said, civil cases that
use an expansive interpretation of Section 1030 should be viewed with extreme caution. See note 10, infra.
9
18 U.S.C. Section 1030(g) provides a right of action for private persons injured by computer crimes.

15

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business. 390 F. Supp. 2d at 495-96. The defendant had signed an agreement promising that she
would not access union computers “contrary to the policies and procedures of the [union]
Constitution.” Id. at 498. The court rejected the application of Section 1030, holding that even
if the defendant breached a contract, breaking a promise not to use information stored on union
computers in a particular way did not mean her access to that information was unauthorized or
criminal:
Thus, to the extent that Werner-Masuda may have breached the Registration
Agreement by using the information obtained for purposes contrary to the policies
established by the [union] Constitution, it does not follow, as a matter of law, that
she was not authorized to access the information, or that she did so in excess of
her authorization in violation of the [Stored Communications Act] or the CFAA . .
. . Although Plaintiff may characterize it as so, the gravamen of its complaint is
not so much that Werner-Masuda improperly accessed the information contained
in VLodge, but rather what she did with the information once she obtained it . . . .
Nor do [the] terms [of the Stored Communications Act and the CFAA] proscribe
authorized access for unauthorized or illegitimate purposes.
Id. at 498-99 (emphasis in original). The court captured the issue perfectly when it explained
that “the gravamen of [the] complaint is not so much that [the accused] improperly accessed the
information . . . but rather what [the accused] did with the information once [the accused]
obtained it.” Id. at 499. The Government in the instant case has made the same mistake. The
gravamen of the offense alleged is that PFC Manning allegedly transmitted classified
information to persons not authorized to receive it. It just so happens that a computer was the
means by which he is alleged to have done so. This does not, in any circumstances, mean that
PFC Manning exceeded authorized access within the meaning of Section 1030.
35. These cases are representative of the host of other cases that have properly interpreted the
term “exceeds authorized access” in Section 1030. See, e.g., Walsh Bishop Assocs., Inc., 2012
WL 669069, at *2-3; Xcedex, Inc., 2011 WL 2600688, at *4; Océ N. Am., Inc., 748 F. Supp. 2d
at 485-87 (identifying that the phrase “exceeds authorized access” exclusively prohibits access of
a computer without authorization, not an employee’s misuse of information that the individual
was permitted to access); AtPac, Inc., 730 F. Supp. 2d at 1181 (“[T]he definition of the term
‘exceeds authorized access’ is one that simply examines whether the accessor was entitled to
access the information for any purpose.”); Univ. Sports Publ’ns Co., 725 F. Supp. 2d at 283-85;
Lewis-Burke Assocs. LLC, 725 F. Supp. 2d at 194 (explaining that “‘[e]xceeds authorized access’
should not be confused with exceeds authorized use.” (internal quotations omitted)); Orbit One
Commc’ns, Inc., 692 F. Supp. 2d at 385-86; Bell Aerospace Servs, Inc., 690 F. Supp. 2d at 1272
(“‘Exceeds authorized access’ should not be confused with exceeds authorized use.”);
ReMedPar, Inc., 683 F. Supp. 2d at 610-13 (recognizing that “exceeds authorized use” is to be
construed narrowly, reasoning that the phrase is not intended to extend to situations where the
access was authorized but the use was not); Bro-Tech Corp., 651 F. Supp. 2d at 407 (A
defendant’s purpose in accessing a computer is irrelevant to whether he or she exceeds
authorized access, even if the purpose in doing so is to misuse or misappropriate the
information); Jet One Group, Inc., 2009 WL 2524864, at *5-6; State Analysis, Inc., 621 F. Supp.
2d at 317 (recognizing that “exceeds authorization” is explicitly defined as “to access a computer
16

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with authorization and to use such access to obtain or alter information in the computer that the
accesser is not entitled so to obtain or alter.” (internal quotations omitted)); Condux Int'l, Inc.,
2008 WL 5244818, at *4-6; Shamrock Foods, 535 F. Supp. 2d 962 (the defendant had an
employee account on the computer he used at the company where he was employed, and was
permitted to view the specific files he allegedly emailed to himself; the court held that the CFAA
did not apply, even though the emailing was for the improper purpose of benefiting himself and a
rival company in violation of the defendant’s confidentiality agreement); Diamond Power Int’l,
Inc. v. Davidson, 540 F. Supp. 2d 1322, 1343 (N.D. Ga. 2007) (identifying the narrower
interpretation of “exceeding authorized access” as “the more reasoned view,” and holding that “a
violation for accessing ‘without authorization’ occurs only where initial access is not permitted.
And a violation for ‘exceeding authorized access’ occurs where initial access is permitted but the
access of certain information is not permitted.”); Int’l Ass’n of Machinists & Aerospace Workers,
390 F. Supp. 2d at 498-99.
36. Notwithstanding Congress’s clear and unambiguous definition of “exceeds authorized
access” in Section 1030(e)(6), some courts have erroneously held that the purpose for which a
computer or information is accessed is somehow relevant to the inquiry of whether the accused
exceeded his authorized access.10 See, e.g., United States v. Rodriguez, 628 F.3d 1258, 1263
(11th Cir. 2010); United States v. John, 597 F.3d 263, 272 (5th Cir. 2010) (“[T]he concept of
‘exceeds authorized access’ may include exceeding the purposes for which the access is
‘authorized.’ Access to a computer and data that can be obtained from that access may be
exceeded if the purposes for which access has been given are exceeded.”). These cases are
wrongly decided. Neither the John Court nor the Rodriguez Court offered any explanation –
much less any plausible explanation – as to how its interpretation of “exceeds authorized
access” could be squared with the plain meaning of Section 1030. As the court stated in
Aleynikov:

10

Many of the cases that hold that a user’s purpose in accessing the computer is relevant to a charge under Section
1030 have been decided in the civil context. These civil cases are inapposite and their reasoning should not be
extrapolated to the criminal context. In civil cases, the defendant risks having to pay a fine under Section 1030; in
criminal cases, the defendant faces the potential for physical confinement. It stands to reason that civil courts will
interpret Section 1030 more broadly than criminal courts. This point is clearly made by Professor Kerr:
The second source of the difficulty is that many cases have interpreted “authorization” in the
context of civil disputes rather than criminal prosecutions. The difference tends to push courts
in the direction of expansive interpretations of new laws. It is one thing to say that a defendant
must pay a plaintiff for the harm his action caused; it is quite another to say that a defendant
must go to jail for it. Courts are more likely to hold a defendant liable under an ambiguous
statute when the stakes involve a business dispute between two competitors than when the
government seeks to punish an individual with jail time. As a result, civil precedents tend to
adopt broader standards of liability than do criminal precedents. Because many unauthorized
access cases have arisen in a civil context with sympathetic facts, courts have adopted broad
approaches to authorization that in a criminal context would criminalize a remarkable swath of
conduct involving computers.
Kerr, Cybercrime's Scope, supra, at 1641-42.

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[These cases] identify no statutory language that supports interpreting [Section
1030] to reach misuse or misappropriation of information that is lawfully
accessed. Instead, they improperly infer that “authorization” is automatically
terminated where an individual “exceed[s] the purposes for which access is
‘authorized.’” But “the definition of ‘exceeds authorized access’ in [Section]
1030(e)(6) indicates that Congress did not intend to include such an implicit
limitation in the word ‘authorization.’”
737 F. Supp. 2d at 193 (emphasis supplied) (citations omitted).
37. The en banc Nosal Court further pointed out that the Rodriguez and John decisions were the
product of the courts’ failure to consider the broader implications of their holdings. The Nosal
III Court explained that:
These courts looked only at the culpable behavior of the defendants before them,
and failed to consider the effect on millions of ordinary citizens caused by the
statute’s unitary definition of “exceeds authorized access.” They therefore failed
to apply the long-standing principle that we must construe ambiguous criminal
statutes narrowly so as to avoid “making criminal law in Congress’s stead.”
2012 WL 1176119, at *6 (quoting United States v. Santos, 553 U.S. 507, 514 (2008) (plurality
opinion)).
38. Finally, neither the defendant in John nor the defendant in Rodriguez brought to the court’s
attention the very significant 1986 amendment to Section 1030’s text replacing the phrase
“having accessed a computer with authorization, uses the opportunity such access provides for
purposes to which such authorization does not extend” with the phrase “exceeds authorized
access.” See Brief for Defendant-Appellant, United States v. Rodriguez, 628 F.3d 1258 (11th
Cir. 2010) (No. 09-15265), 2010 WL 5650308; Reply Brief for Defendant-Appellant, United
States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010) (No. 09-15265), 2010 WL 5650310; Brief
for Defendant-Appellant, United States v. John, 597 F.3d 263 (5th Cir. 2010) (No. 08-10459),
2008 WL 7986381; Reply Brief for Defendant-Appellant, United States v. John, 597 F.3d 263
(5th Cir. 2010) (No. 08-10459), 2008 WL 7986383. The Government in each case similarly
failed to discuss this crucial piece of legislative history. See Brief for Appellee United States,
United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010) (No. 09-15265), 2010 WL 5650309;
Brief for Appellee United States, United States v. John, 597 F.3d 263 (5th Cir. 2010) (No. 0810459), 2008 WL 7986382. Had they done so, the result would likely have been different.
39. The imprudent expansive interpretation of “exceeds authorized access” adopted by the
Rodriguez and John courts should be rejected because it is inconsistent with the plain text of
Section 1030 and contrary to congressional intent.
40. As discussed, the plain language of Section 1030(e)(6) in no way indicates that the purposes
of an accused in accessing the information or violations of access restrictions can establish that
an accused has exceeded authorized access if he has authority to access the computer and to
access the information. See 18 U.S.C. § 1030(e)(6) (“[T]he term ‘exceeds authorized access’
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means to access a computer with authorization and to use such access to obtain or alter
information in the computer that the accesser is not entitled so to obtain or alter[.]”). If the
accused has authorization to access the computer and obtains information that the accused has
authorization to obtain, the accused cannot, under the plain language of Section 1030(e)(6), be
held to have exceeded his authorized access. Interpreting “exceeds authorized access” to include
an accused’s misuse of information or violation of access restrictions is inconsistent with the
plain language of Section 1030(e)(6) and with the legislative history of Section 1030.
41. Even if a court could “get past” the problems with statutory interpretation, there is another
serious infirmity in the interpretation advanced by courts that ascribe an expansive interpretation
of Section 1030. These courts require an analysis into an accused’s subjective intent at the time
he accessed the relevant information in order to determine whether he exceeded his authorized
access. In other words, “exceeding authorized access” becomes a shifting standard depending on
a person’s intent at the time they accessed the information. For instance, consider a corporate
lawyer who uses his employer’s computer to search for information on what deals the firm is
working on. He has full access to the firm’s computers and full authority to access and read
client files. As he is perusing the files, he discovers information that a corporate client has
overstated its revenues and would be issuing a public statement to that effect the subsequent
week. He owns shares of that company and, based on the information he has acquired, decides a
few days later to sell his shares. The law firm’s terms of use specify that lawyers may not use
firm information for their personal financial gain. Has the lawyer “exceeded authorized access”
because he violated the terms of use? Certainly, the lawyer may be guilty of insider trading or
may have violated ethical canons – but he did not exceed authorized access under the expansive
(and incorrect) interpretation of Section 1030 because, at the time he accessed the information,
he had no intent to use the information for a purpose contrary to the terms of use. If, however,
the lawyer went looking for information on the computer on the particular client with the
intention of using it for his own purposes, under the interpretation offered by Rodriguez and
John, the lawyer would be exceeding authorized access because he exceeded the firm’s terms of
use. Thus, the very same act – looking at the financial information of a corporate client – would
be punishable under Section 1030 in some cases, but not in others.11
42. This variable standard cannot be what Congress intended. Either a person has exceeded
authorized access (in that they accessed information that they did not have permission to access)
or they did not. The determination cannot be a nebulous inquiry into an accused’s state of mind
at the time he accessed material that he had authorization to access. See Aleynikov, 737 F. Supp.
2d at 194 (“The interpretation of [Section 1030] adopted in this line of cases would require an
analysis of an individual’s subjective intent in accessing a computer system, whereas the text of
11

Indeed, the en banc Ninth Circuit raised this very possibility in the Nosal rehearing in reference to a hypothetical
defendant who sold security information to a hostile power. One judge asked, “Does the employee violate the Act if
the employee has security clearance to be into the database but the government has said, ‘You may access this
database as long as you don’t sell it to a hostile power.’ And somebody takes the information to which they are
authorized to be there by virtue of their security clearance but then takes it and sells it to a hostile power?” Oral
Argument at 14:14, United States v. Nosal, No. 10-10038 (9th Cir. Dec. 15, 2011) (en banc), available at
http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000008546. The Government’s position was that
this would constitute “exceeding authorized access” under Section 1030 provided that the defendant had a prohibited
purpose at the time of the access. Id. at 14:40. However, the Government conceded that if the defendant obtained
the information and decided to sell it later, this would not violate Section 1030. Id. at15:14.

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[Section 1030] calls for only an objective analysis of whether an individual had sufficient
‘authorization.’ While a confidentiality agreement or other policies or obligations owed to an
employer may prohibit misuse of a company’s internal computer system or misappropriation of
confidential information therein, the plain text of [Section 1030] does not.”).
D.

The Rule of Lenity Requires That “Exceeds Authorized Access” Be Read in Its
Narrow Sense

43. The Defense submits that the meaning of “exceeds authorized access” is abundantly clear,
both by its plain meaning and through an analysis of the legislative history. The Government,
however, submits that the accused’s purpose in accessing the information in question should be
grafted onto Section 1030. Thus, the Government posits that an individual can exceed
authorized access by accessing information with a subjective purpose that is inconsistent with the
governing use policy or the computer owner’s interests. To the extent that there are two possible
interpretations of a statute – one broad and one narrow – courts should apply the rule of lenity
and adopt the narrow interpretation.
44. It is well established that “ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.” United States v. Carr, 513 F.3d 1164, 1168 (9th Cir. 2008) (quoting
Rewis v. United States, 401 U.S. 808, 812 (1971)). The Supreme Court has long warned against
interpreting criminal statutes in surprising and novel ways that impose unexpected burdens on
defendants. See Santos, 553 U.S. at 514 (2008) (citing United States v. Bass, 404 U.S. 336, 34749 (1971); McBoyle v. United States, 283 U.S. 25, 27 (1931); United States v. Gradwell, 243
U.S. 476, 485 (1917)). “This venerable rule . . . vindicates the fundamental principle that no
citizen should be held accountable for a violation of a statute whose commands are uncertain, or
subjected to punishment that is not clearly prescribed.” Id. Therefore, “[t]he rule of lenity,
which is rooted in considerations of notice, requires courts to limit the reach of criminal statutes
to the clear import of their text and construe any ambiguity against the government.” United
States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006).
45. Military courts have accepted the rule of lenity when construing ambiguous criminal
statutes. See United States v. Schelin, 15 M.J. 218, 220 (C.M.A. 1983); United States v.
Cartwright, 13 M.J. 174, 176 & n.4 (C.M.A. 1982); Inthavong, 48 M.J. at 630 (“‘This policy of
lenity means that [courts] will not interpret a federal criminal statute so as to increase the penalty
that it places on an individual when such an interpretation can be based on no more than a guess
as to what Congress intended.’ Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3
L.Ed.2d 199 (1958) (emphasis added)”); United States v. Ferguson, 40 M.J. 823, 830
(N.M.C.M.R. 1994)( “‘It is an ancient rule of statutory construction that penal statutes should be
strictly construed against the government . . . and in favor of the persons on whom penalties are
sought to be imposed.’ Sutherland Stat Const § 59.03 (5th Ed). A corollary to the rule of strict
construction is the ‘rule of lenity’ whereby ambiguities in penal statutes are resolved in favor of
lenity. Id. Statutes that declare conduct criminal or laws that expressly define or limit
punishments for any offense are classified as penal. Id. at § 59.02. The UCMJ is a penal statute.
Rule for Courts–Martial (R.C.M.) 201, MCM, United States, 1984. With an eye to Levy, we
conclude the UCMJ is generally subject to the rule of strict construction and the “rule of lenity.”
See United States v. Schelin, 15 M.J. 218 (C.M.A.1983).”).
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46. Thus, under the rule of lenity, this Court should adopt the narrow meaning of “exceeds
authorized access.” That is, one exceeds authorized access when one bypasses technical,
computer-based restrictions to access information on the computer than one is not entitled to
access. This is exactly what the Ninth Circuit held in Nosal III:
If Congress wants to incorporate misappropriation liability into the CFAA, it must
speak more clearly. The rule of lenity requires “penal laws . . . to be construed
strictly.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37
(1820). “[W]hen choice has to be made between two readings of what conduct
Congress has made a crime, it is appropriate, before we choose the harsher
alternative, to require that Congress should have spoken in language that is clear
and definite.” Jones [v. United States], 529 U.S. [848,] 858, 120 S.Ct. 1904
[(2000)] (internal quotation marks and citation omitted).
The rule of lenity not only ensures that citizens will have fair notice of the
criminal laws, but also that Congress will have fair notice of what conduct its
laws criminalize. We construe criminal statutes narrowly so that Congress will
not unintentionally turn ordinary citizens into criminals. “[B]ecause of the
seriousness of criminal penalties, and because criminal punishment usually
represents the moral condemnation of the community, legislatures and not courts
should define criminal activity.” United States v. Bass, 404 U.S. 336, 348, 92
S.Ct. 515, 30 L.Ed.2d 488 (1971). “If there is any doubt about whether Congress
intended [the CFAA] to prohibit the conduct in which [Nosal] engaged, then ‘we
must choose the interpretation least likely to impose penalties unintended by
Congress.’” United States v. Cabaccang, 332 F.3d 622, 635 n.22 (9th Cir.2003)
(quoting United States v. Arzate–Nunez, 18 F.3d 730, 736 (9th Cir.1994)).
This narrower interpretation is also a more sensible reading of the text and
legislative history of a statute whose general purpose is to punish hacking – the
circumvention of technological access barriers – not misappropriation of trade
secrets – a subject Congress has dealt with elsewhere . . . . Therefore, we hold that
“exceeds authorized access” in the CFAA is limited to violations of restrictions on
access to information, and not restrictions on its use.
2012 WL 1176119, at *7-8 (emphases in original). Applying the rule of lenity and what the
Defense submits is the proper understanding of “exceeds authorized access,” the Government
has failed to state a claim.
E.

An Expansive Reading of “Exceeds Authorized Access” Is Unconstitutionally Vague
and Would Lead to Absurd Results

47. An expansive interpretation of “exceeds authorized access” that would criminalize persons
for violating terms of authorized use puts at least one provision of Section 1030 in constitutional
jeopardy. In Nosal I, the defendant argued to the three judge panel of the Ninth Circuit that the
Government’s interpretation would “make criminals out of millions of employees who might use
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their computers for personal use, for example, to access their personal email accounts or to check
the latest college basketball scores.” 642 F.3d at 788. The panel majority rejected this
contention, concluding that because Section 1030(a)(4) requires an intent to defraud and an
action that furthers the fraud, the defendant’s “Orwellian” fear was unfounded. Id. at 788-89.
48. The en banc Ninth Circuit, however, was not so dismissive. After all, the term “exceeds
authorized access” is included in both Section 1030(a)(4) – the provision at issue in Nosal – and
Section 1030(a)(2)(C). See 18 U.S.C. § 1030(a)(2)(C), (4); Nosal III, 2012 WL 1176119, at *3.
Thus, an interpretation of “exceeds authorized access” for Section 1030(a)(4) purposes is equally
applicable to Section 1030(a)(2)(C). Nosal III, 2012 WL 1176119, at *4. Section 1030(a)(2)(C)
does not require an intent to defraud like Section 1030(a)(4) does. See id. at *3-4. Instead, a
person is guilty of a violation of Section 1030(a)(2)(C) when that person “intentionally accesses
a computer without authorization or exceeds authorized access, and thereby obtains . . .
information from any protected computer,” 18 U.S.C. § 1030(a)(2)(C), where the term
“protected computer” includes a computer connected to the internet. See Nosal, 2012 WL
1176119, at *3-4. Therefore, under “the government’s proposed interpretation, millions of
unsuspecting individuals would find that they are engaging in criminal conduct.” Id. at *4. The
court colorfully elaborated:
Minds have wandered since the beginning of time and the computer gives
employees new ways to procrastinate, by g-chatting with friends, playing games,
shopping or watching sports highlights. Such activities are routinely prohibited
by many computer-use policies, although employees are seldom disciplined for
occasional use of work computers for personal purposes. Nevertheless, under the
broad interpretation of the CFAA, such minor dalliances would become federal
crimes.
Id.
49. The Nosal III Court found this situation intolerable for two reasons, both tied to the void-forvagueness doctrine. First, the Government’s interpretation posed serious notice concerns. See
id. Second, it would “invite arbitrary and discriminatory enforcement.” Id.
50. The court remarked that “[s]ignificant notice problems arise if we allow criminal liability to
turn on the vagaries of private policies that are lengthy, opaque, subject to change and seldom
read.” Id. The use of countless websites is governed by a series of private agreements and
policies. Id. at *5. The prevalence of these agreements and policies is rivaled only by their
obscurity to the average person; “most people are only dimly aware of [them] and virtually no
one reads or understands [them].” Id. If the scant notice of their existence wasn’t troublesome
enough, “website owners retain the right to change the terms at any time and without notice.
Accordingly, behavior that wasn’t criminal yesterday can become criminal today without an act
of Congress, and without any notice whatsoever.” Id. at *6 (citation and parenthetical omitted).12
12

The fact that these notice concerns may not be as apparent in this case should be irrelevant to this Court’s
interpretation of the term “exceeds authorized access.” As the en banc Nosal Court noted, the interpretation given to
the term “exceeds authorized access” is applicable to all provisions of Section 1030 that use some variant of that
term. See Nosal III, 2012 WL 1176119, at *4 (“Congress obviously meant ‘exceeds authorized access’ to have the

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51. In addition to these substantial notice concerns, the Nosal III Court also anticipated that the
Government’s interpretation would lead to arbitrary and discriminatory enforcement. See id. at
*4, *6. The Government’s assurances of prosecutorial restraint did not satisfy the court:
The government assures us that, whatever the scope of the CFAA, it won't
prosecute minor violations. But we shouldn’t have to live at the mercy of our
local prosecutor. Cf. United States v. Stevens, --- U.S. ----, 130 S.Ct. 1577, 1591
(2010) (“We would not uphold an unconstitutional statute merely because the
Government promised to use it responsibly.”). And it’s not clear we can trust the
government when a tempting target comes along. Take the case of the mom who
posed as a 17–year–old boy and cyber-bullied her daughter’s classmate. The
Justice Department prosecuted her under 18 U.S.C. § 1030(a)(2)(C) for violating
MySpace’s terms of service, which prohibited lying about identifying
information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D. Cal.
2009). Lying on social media websites is common: People shave years off their
age, add inches to their height and drop pounds from their weight. The difference
between puffery and prosecution may depend on whether you happen to be
someone an AUSA has reason to go after.
Id. at *6 (emphasis in original).
52. Indeed, as the en banc Ninth Circuit indicated, the “Orwellian situation” that was so casually
dismissed by the Nosal I panel majority actually came to fruition in Drew. In that case, the adult
defendant created a false MySpace profile of a teenage boy, posted a picture of a teenage boy to
that profile without the boy’s consent, used that profile to befriend a teenage girl, and eventually
used that profile to tell that teenage girl that “the world would be a better place without her in it.”
Drew, 259 F.R.D. at 452. The teenage girl took her own life later that day, and the defendant
was soon indicted for felony violations of Section 1030(a)(2)(C) and (c)(2)(B)(ii). Id. The
defendant was alleged to have exceeded her authorized access to MySpace.com because her act
of creating the false profile and the posting of a picture of a teenage boy without the boy’s
consent violated MySpace’s terms of service. Id. The jury acquitted the defendant of the felony
violations but convicted her on misdemeanor violations of Section 1030(a)(2)(C). Id. at 453.
The defendant then filed a motion for judgment of acquittal, contending that the violation of the
terms of service of an internet provider cannot constitute exceeding authorized access under
Section 1030 and, if it did, Section 1030 was unconstitutionally vague. Id. at 451.
53. The United States District Court for the Central District of California granted the
defendant’s motion, concluding that Section 1030(a)(2)(C), as interpreted by the court and as
same meaning throughout [S]ection 1030. We must therefore consider how the interpretation we adopt will operate
wherever in that section the phrase appears.”). Therefore, it is no answer to the constitutional concerns raised by the
expansive interpretation of the term “exceeds authorized access” to say that no notice concerns are present in this
case. Indeed, the Nosal panel majority put forth this flawed, myopic rationale, see Nosal I, 642 F.3d at 788-89, and
that rationale was soundly rejected by the en banc Nosal Court, see Nosal III, 2012 WL 1176119, at *3-4. The
Rodriguez and John Courts made the same mistake. See id. at *6. Accordingly, in choosing the appropriate
interpretation of the term “exceeds authorized access” this Court must consider how the chosen interpretation will
affect the other provisions of Section 1030. See id. at *4.

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applied to the defendant’s conduct, was unconstitutionally vague. Id. at 464-67. First, the court
determined that, as it had interpreted Section 1030, the statute presented serious notice problems:
“[T]he language of [S]ection 1030(a)(2)(C) does not explicitly state (nor does it implicitly
suggest) that [Section 1030] has ‘criminalized breaches of contract’ in the context of website
terms of service.” Id. at 464. Second, the court explained that under Section 1030(a)(2)(C)’s
“‘standardless sweep’ . . . federal law enforcement entities would be improperly free ‘to pursue
their personal predilections’” in selecting which violations to prosecute and which to let go
unpunished. Id. at 467 (quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983)). Accordingly,
the court concluded that its broad interpretation of “exceeds authorized access” rendered Section
1030(a)(2)(C) unconstitutionally vague as applied to the defendant’s conduct. Id. at 464, 467.
54. Under the Government’s interpretation in this case, if an accused violates the governing
terms of use, he is guilty of a federal offense under Section 1030. As described above, this
interpretation raises serious constitutional concerns of vagueness – concerns which can be
readily avoided by interpreting the phrase “exceeds authorized access” according to its plain
meaning.
F.

Academic Commentary Supports the View that “Exceeds Authorized Access”
Under Section 1030 Must be Interpreted Narrowly

55. Professor Orin Kerr, one of the country’s foremost experts in the area of computer crimes
and cyber law, has argued in two separate articles that the term “exceeding authorized access”
should not be interpreted so as to allow for an inquiry into whether the accused has violated the
computer owner’s terms of use. Rather, Section 1030 should only capture whether the user bypassed technical restrictions so as to access information that he was not entitled to access. See
Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev.
1561, 1572 (2010) [hereinafter Kerr, Vagueness Challenges]; Kerr, Cybercrime's Scope, supra,
at 1649.
56. Kerr notes that several courts have correctly recognized that “an employee who is authorized
to access an employer’s computer is, well, authorized to use the employer’s computer.” Kerr,
Vaguenss Challenges, supra, at 1584. Under this interpretation, courts have properly held that
misuse of an employer’s computer in no way renders the access unauthorized; in fact, the misuse
is entirely irrelevant to the “exceeds authorized access” inquiry. See id. For Kerr, when access
is without authorization or exceeds authorized access must be limited “to access that circumvents
restrictions by code.” Kerr, Cybercrime’s Scope, supra, at 1649. Kerr has explained this codebased approach as follows:
When a user circumvents regulation by code, she tricks the computer into giving
her greater privileges than she is entitled to receive. This normally can occur in
two ways. First, a user can enter the username and password of another user with
greater privileges . . . . Second, a user can exploit a design flaw in software that
leads the software to grant the user greater privileges[.]
Id. (footnote omitted).

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57. He views this narrow interpretation as not only correct, but absolutely essential to the
CFAA’s vitality: “Only a narrow construction of the statute can save its constitutionality.” Kerr,
Vagueness Challenges, supra, at 1572. Kerr reasons that a narrow construction is necessary
because a more expansive interpretation, like the one adopted by the John and Rodriguez courts,
would likely render Section 1030 both substantially overbroad and unconstitutionally vague. See
Kerr, Cybercrime’s Scope, supra, at 1658-59.
58. If “exceeds authorized access” is interpreted to cover a person’s violations of a website’s
terms of service or a person’s misuse or misappropriation of information that the person was
authorized to access in the first place, the overbreadth doctrine is implicated because Section
1030 would in effect be “granting computer owners the power to criminalize speech, and even
mere thoughts.” Id. at 1658. Kerr provides the following example to illustrate this point:
[A] pro-life owner of a computer network could insert a paragraph in the Terms of
Use agreement allowing only those who express pro-life opinions (or even only
those who are pro-life) to use the network. Expressing pro-choice viewpoints
would violate the Terms of Use, making the access “without authorization” or
“exceeding authorized access” and triggering criminal liability.
Id. at 1658-59. The First Amendment would be seriously offended if the CFAA gave a computer
owner the power to “harness the criminal law at his discretion” in this manner. Id. at 1658
59. Even more problematic, Kerr argues, an expansive interpretation of “exceeds authorized
access” would pose serious vagueness concerns. See Kerr, Vagueness Challenges, supra, at
1562, 1572; Kerr, Cybercrime’s Scope, supra, at 1659. “The CFAA has become so broad, and
computers so common, that expansive or uncertain interpretations of unauthorized access . . .
would either provide insufficient notice of what is prohibited or fail to provide guidelines for law
enforcement in violation of the constitutional requirement of Due Process[.]” Kerr, Vagueness
Challenges, supra, at 1562. If a website’s terms of service can limit a user’s access, as the court
held in Drew, the notice problems are readily apparent:
Few users read the terms of service or terms of use of any of the computers they
access, much less all of them, and many restrictions feature ambiguous terms that
can be quite difficult to interpret. It is difficult, if not impossible, for a typical
user to know for sure whether he is in compliance with all of the contractual
restrictions regulating each of the computers he has accessed at any given time.
Under the broad contractual theory of authorization, however, any violation of the
terms of service or terms of use of any computer a person accesses violates the
statutory prohibition on unauthorized access.
Kerr, Cybercrime’s Scope, supra, at 1659. The notice problems are just as serious under the
expansive interpretation adopted in John and Rodriguez where an employee’s use of information
for personal reasons, or contrary to the interests of the employer, can be considered exceeding
authorized access:

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[W]e need to recognize that many employees routinely use protected computers in
the course of their day for a tremendously wide range of functions. Employee use
of computers tracks employee attention spans. Attention wanders, and our
computer use wanders with it. We think, therefore we Google. As a result, it is
rare, if not inconceivable, for every keystroke to be clearly and strictly in the
course of furthering an employment relationship. The best employee in a larger
company might spend thirty minutes writing up a report, and then spend one
minute checking personal e-mail and twenty seconds to check the weather to see
if the baseball game after work might be rained out. He might then spend ten
more minutes working on the report followed by two minutes to check the online
news. Over the course of the day, he might use the computer for primarily
personal reasons dozens or even hundreds of times.
Kerr, Vagueness Challenges, supra, at 1585.
60. For these reasons, Kerr concludes that “[t]he acts of violating [a website’s terms of service]
and acting contrary to an employer’s interest, without more, should not constitute either an
access without authorization or exceeding an authorized access.” Id. at 1572. Such an
interpretation would “create a remarkably broad criminal prohibition that has no connection to
the rationales of criminal punishment.” Kerr, Cybercrime’s Scope, supra, at 1663.
61. Kerr is by no means alone in advocating the necessity of a narrow interpretation of “exceeds
authorized access.” Indeed, several other commentators have echoed the same refrain. See, e.g.,
Thomas E. Booms, Note, Hacking Into Federal Court: Employee “Authorization” Under the
Computer Fraud and Abuse Act, 13 Vand. J. Ent. & Tech. L. 543, 570 (2011) (advocating a
narrow interpretation because “an employee who has permission to access an employer’s
computer is authorized to use that computer. It should be irrelevant what the employee does on
the computer, because the statute emphasizes access to the computer, not its use. This
interpretation is not only supported by the plain meaning of the statute, the CFAA’s legislative
history, and the rule of lenity, but also allows for a consistent and predictable application of the
statute.” (footnote omitted)); id. at 571 (providing the following analogous example: “If a person
is invited into someone’s home and steals jewelry while inside, the person has committed a crime
– but not burglary – because he has not broken into the home. The fact that the person
committed a crime while inside the home does not change the fact that he was given permission
to enter.”); Garrett D. Urban, Note, Causing Damage Without Authorization: The Limitations of
Current Judicial Interpretations of Employee Authorization Under the Computer Fraud and
Abuse Act, 52 Wm. & Mary L. Rev. 1369, 1407 (2011) (“A code-based approach [like the one
advocated by Kerr] to the amended CFAA would limit expansive liability while still allowing for
changes in technology”); Greg Pollaro, Disloyal Computer Use and the Computer Fraud and
Abuse Act: Narrowing the Scope, 2010 Duke L. & Tech. Rev. 12, ¶ 23 (2010), available at
http://dltr.law.duke.edu/2010/08/26/disloyal-computer-use-and-the-computer-fraud-and-abuseact-narrowing-the-scope/ (“A narrow definition . . . has the dual benefit of providing a clearer
standard and being in accord with the initial spirit and purpose of the CFAA.”).
62. Therefore, academic commentary provides even further support for the position that the term
“exceeds authorized access” should be interpreted narrowly to only cover situations where a
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person accesses information that the person is not authorized to access, regardless of the
purposes behind the access.
CONCLUSION
63. The Government in this case has not alleged that PFC Manning “exceeded authorized
access” within the proper meaning of Section 1030(a)(1). PFC Manning had access to the
relevant SIPRNET computers and was authorized to access every piece of information that he
allegedly accessed on the SIPRNET. As such, because the Government has failed to allege that
PFC Manning’s conduct exceeded his authorized access under Section 1030(a)(1), the
specifications alleging violations of Section 1030(a)(1) must be dismissed.
64. Wherefore, in light of the foregoing, the Defense requests this Court dismiss Specifications
13 and 14 of Charge II because the Government has failed to allege that PFC Manning’s alleged
conduct exceeded authorized access within the meaning of Section 1030(a)(1).
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

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UNITED STATES OF AMERICA
v.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)

)
)
)
)
)

GOVERNMENT RESPONSE TO
DEFENSE MOTION TO DISMISS
SPECIFICATIONS 13 AND 14
OF CHARGE II FOR FAILURE
TO STATE AN OFFENSE
24 May 2012

RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny the defense motion to dismiss Specifications 13 and 14 of
Charge II for failure to state an offense.

BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the defense has the burden of persuasion on any factual issue the
resolution of which is necessary to decide the motion. Manual for Courts-Martial (MCM),
United States, Rule for Courts-Martial (RCM) 905(c)(2) (2008). The burden of proof is by a
preponderance of the evidence. RCM 905(c)(1).

FACTS

The United States stipulates to the facts as set forth in the defense motion. The United
States adds the following facts:
While deployed, the accused used two different Secret Internet Protocol Router Network
(SIPRNET) computers: (1) a SIPRNET computer with the internet protocol (IP) address of
22.225.41.22; and (2) a SIPRNET computer with the IP address of 22.225.41.40. See Enclosure
1 at 126-27, 133. Before logging on to each computer with a username and password, the
accused was presented with a warning banner. See id. at 134-35. The accused was required to
click "OK" after being warned of the following:
You are accessing a U.S. Government (USG) Information System
(IS) that is provided for USG-authorized use only. By using this
IS (which includes any device attached to this IS), you consent to
the following conditions:
The USG routinely intercepts and
monitors communications on this IS for purposes including, but
not limited to, penetration testing, COMSEC, monitoring, network
operations and defense, personnel misconduct (PM), law
enforcement (LE), and counterintelligence investigations. At any
time, the USG may inspect and seize data stored on this IS.
Communications using, or data stored on, this IS are not private,
1

21361

are subject to routine monitoring, interception and search, and may
be disclosed or used for any USG authorized purpose. This IS
includes security measures (e.g. authentication and access controls)
to protect USG-interests-not for your personal benefit or privacy.
Notwithstanding the above, using this IS does not constitute
consent to PM, LE, or CI investigative searching or monitoring of
the contect [sic] of priviledged [sic] communications, or work
product, related to personal representation or services by attorneys,
psychotherapists, or clergy, and their assistants.
Such
communications and work product are private and confidential.
See User Agreement or details.

See id. ; Enclosure 2.
During the Article 32 Investigation, the United States proceeded under the theory that
because the accused's access to SIPRNET computers was governed by a purpose-based
limitation or restriction, the accused exceeded authorized access when he accessed those
classified government computers for an unauthorized or expressly forbidden purpose. See
Enclosure 3. The purpose-based restriction was apparent in the first sentence of the warning
banner, which notified the accused that he was "accessing a U.S. Government (USG)
Information System (IS) that is provided for USG-authorized use only." Enclosure 2; see
Enclosure 1 at 134-35.
The accused and members of his unit were also required to sign a user agreement or
acceptable use policy (AUP) prior to being granted access and a user network account (username
and password) for the SIPRNET while deployed. See Enclosure 5. The Army's sample AUP
states that "[a]ccess to this/these network(s) is for official use and authorized purposes ...." See
Enclosure 6 at 62. The purpose of an AUP is to obtain explicit acknowledgments from
individuals on their responsibilities and limitations in using government information systems.
See id. at 61.
Net-Centric Diplomacy
In response to the attacks of September 11th, Congress tasked the Office of the Director
of National Intelligence to find a way to get key government agencies (e.g. Department of
Defense (DOD) and Department of State (DOS)) to share information rapidly. See Enclosure 4.
The Net-Centric Diplomacy Database (NCD), financed by DOD, was developed to provide a full
range of diplomatic reporting ("diplomatic cables") to any individual with access to the DOD­
controlled SIPRNET. See id. at 2. Diplomatic cables were routed to the NCD database or
server, and thus made available to individuals with access to the SIPRNET, when the cable was
assigned the code "SIPDIS" or "SIPR distribution." See id. at 3. In order for a SIPRNET user to
access a diplomatic cable, the user must navigate through the SIPRNET to the NCD website
(http://ncd.state.sgov.gov), and search the website for the desired cable.

2

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INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.
c. Record of proceedings in court, including
Article 39(a) sessions, if any.
d. Authentication sheet, followed by certificate
of correction, if any.
e. Action of convening authority and, if appropriate, action of officer exercising general courtmartial jurisdiction.
f. Exhibits admitted in evidence.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

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