Title: Volume FOIA 110

Release Date: 2014-03-20

Text: 35652

Volume 110 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 ?surrimarizeo? 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

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GOVERNMENT OFFICES OF ICELAND

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17 JunPrime Minister's Office
Address by the Prime Minister, IVIr Sigmundur David Gunnlaugsson, at
Austurvollur, 17 June 2013

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6/23/2013

Government Offices

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"We Icelanders wish to participate in international cooperation and to work with nations all
over the world, sharing our experience, knowledge and strengths but at the same time
learning from others and benefiting from their strengths."

4 JunMinistry for Foreign Affairs
Embassy in Moscow takes over issuing of visas f o r Iceland
Applications for visas continue to be received at the VFS Global service centres in St.
Petersburg and Moscow.

3 JunMinistry for Foreign Affairs

Political Advisor to the Minister
Margret Glslad6ttir has been appointed as a Political Advisor to Gunnar Bragi Sveinsson,
Minister for Foreign Affairs

31.5.2013Prime Minister's Office Prime Minister meets with President of Finland
29.5.2013Ministry of Finance and Economic Affairs Treasury Finances January-April 2013
23.5.2013Ministry for Foreign Affairs New Minister for Foreign Affairs
23.5.2013Prime Minister's Office New Icelandic Government takes office
22.5.2013Ministry of Finance and Economic Affairs Draft legislation on Financial Stability
Council
20.5.2013Ministry for Foreign Affairs The Arctic States sign an agreement on Marine Oil
Pollution Preparedness and Response
16.5.2013Ministry for Foreign Affairs Gender Equality Studies and Training Programme
(GEST) Joins the UN University Network
6.5.2013Ministry ofthe Interior Application for Icelandic citizenship- New point of contact

http://www.govemment.is/

6/23/2013

Ministry for Foreign Affairs '

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MINISTRY FOR FOREIGN AFFAIRS

Shortcuts
Protocol Department
Publications
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Information on Iceland
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Enquiries
Diplomatic Missions
News from the Ministry
Electronic publication: Gender Equality in Iceland's Development Cooperation and
Iceland's second NAP on implementing UNSCR 1325
21 Jun
The Ministry for Foreign Affairs has published two new policy documents; Gender Equality in
Iceland's Development Cooperation and a National Action Plan for the implementation of
UNSCR 1325. Both documents are formulated in line with the Stiategy for Iceland's
Development Cooperation 2013-2016, where gender equality and women's empowerment is
emphasised.
Minister Sveinsson meets with UK's Minister for Europe
20 Jun

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6/23/2013

Ministry for Foreign Affairs

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Foreign minister Gunnar Bragi Sveinsson met yesterday with UK's Minister for Europe, David
Lidington. Minister Sveinsson explained the Icelandic Government's decision to put further
accession negotiations with the European Union on hold, and what that entails. Mr. Lidington
spoke of the current dialogue in the UK regarding the country's future relationship with the
EU and the Government stand on the matter.
13.6.2013 Minister Sveinsson meets with Stefan Fiile
13.6.2013 Minister Sveinsson meets with the NATO Secretary General
4.6.2013 Embassy in Moscow takes over issuing of visas for Iceland

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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

PROSECUTION MOTION
FOR JUDICIAL NOTICE
Enclosure 12
24 June 2013

Al))ingi - Birgitta Jonsdottir

Page 1 of2
35659

Birgitta Jonsdottir

Date of Birth: April 17th, 1967
Telephone: +354 5630 500
Homepage: birqitta.is
E-mail: birqittai@althingi.is
Party:
• Chairman of the Movement 2011-2012.

Parliamentary Career
• Member of Althingi for the Reykjavik South Constituency 2009-2013 and for
the Southv/est Constituency since 2013.
Party Group
• Chairman of the parliamentary group of the Pirate Party since 2013.
• Chairman of the parliamentary group of the Movement 2013 and 20092010.
. Vice-Chairman of the parliamentary group of the Movement 2012-2013 and
2010-2011.
Present committees
• Member of the Constitutional and Supervisory Committee since 2013 (2nd
Vice-Chairman since 2013).
• Observer in the Foreign Affairs Committee since 2011.
• Member of the Icelandic delegation to the Inter-Parliamentary Union (IPU)
since 2013.
• Member of the EU-lceland joint Parliamentary Committee since 2010.

Earlier committees
Member of the Judicial Affairs and Education Committee 2011-2013.
Member of the Foreign Affairs Committee 2009-2011.
Member of the Environment Committee 2009-2011.
Member of the Special Committee on the Standing Orders of Althingi 20112013.
Member of the Parliamentary Reviev/ Committee on the SIC report 20092010.
Member of the Icelandic delegation to the NATO Parliamentary Assembly
2009-2013.Observer in the Foreign Affairs Committee's Working Group on
European Affairs 2011-2013.

http://www.althingi.is/cv en.php4?ksfaerslunr=l43

6/23/2013

Page 2 of 2

Al{5ingi - Birgitta Jonsdottir

35660

Member of the Foreign Affairs Committee's Working Group on European
Affairs 2010-2011.

©Secretariat of Althingi
Contact us

http://www.althingi.is/cv_en.php4?ksfaerslunr=143

6/23/2013

Ambassador > Embassy Information > English > Russia > The Icelandic Foreign Services

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35661

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Born 28 December 1952 in Reykjavik.

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Married to Asa Baldvinsdottir witli two children, Baldvin (born 1983)
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1978: B A. History and Political Science, University of Iceland.

Consular Services

" 1979: M.Sc. International Relations, University of London (London
School of Economics and Political Science).
1980-1982: Researcher, Icelandic Commission on Security and International Affairs.
1983- 2006: External lecturer in International Politics, University of Iceland.
1984- 1987: Radio journalist for Iceland Broadcasting Service.
1987- 1988: Television journalist for Iceland Broadcasting Service.
1988- 1991: Executive Director, Icelandic Commission on Security and International Affairs.
1991-2004: Foreign Policy Adviser to the Prime Minister.
2004 -2006 : Special Adviser to the Foreign Minister.
2006 (June-October): Foreign Policy Adviser to the Prime Minister.
2006-2009: Ambassador to the United States.
2009-2011: Consul General, Faroe Islands.
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6/24/2013

Speeches and Articles | Minister | Prime Minister's Office | Johanna Sigur3ard6ttir 2009-2... Page I of 3
35662

PRLMR MINISTER'S OFFICE

Johanna Sigurdardottir, Prime Minister 2009-2013

Political and Parliamentary activities:
• Prime Minister of Iceland February 1st 2009 - May 23rd 2013.
• Minister of Social Affairs July 8th 1987-June 24th 1994 and May 24th 2007 - February 1st
2009.
• Member of Althingi (the Parliament) for the Reykjavik constituency 1978-2013.
• Member of Althingi's Presidium 1979,1983-1984 and 2003-2007.
• Member of the Committee on Foreign Affairs 1995-1996, Committee on Industry 19951999, Althingi's Special Committee on Constitutional Affairs 1995-1997,1999-2000 and
2004-2007, Committee on General Affairs 1996-1999, Committe on Economy and Trade
1999-2007, Committee on Credentials 1999-2003 and Committee of Social Affairs 20032007.
• Member of the Icelandic Delegation to the IPU 1996-2003.
• Member of the Icelandic Delegation to the OSCE Parliamentary Assembly 2003-2007.
• Vice Chairman of the Social Democratic Party 1984-1993.
• Leader of the Social Democratic Alliance 2009-2013
• Chairman of the Board of Governors on Issues concerning Mentally Challenged and
Disabled Persons 1979-1983.
• Member of Committee preparing a Bill on the Arrangement and Implementation on
Adult Education and Revision of the Social Security Act 1978.
• Member of the Board of Social Security 1978-1987, Chairman of the Board 1979-1980.
• Participant of Conventions of the Inter-Parliamentary Union (IPU) 1980-1985.
• Chairman of the political party f>j65vaki, 1995.
Joharma Sigurdardottir is born in 1942.

http://eng.forsaetisraduneyti.is/minister/JS_speeches/

6/23/2013

Speeches and Articles | Minister | Prime Minister's Office | Johanna Sigurdardottir 2009-2... Page 2 of 3
35663

Johanna Sigurdardottir's Speeches and Articles 2009 2013
Address of the Prime Minister of Iceland at official ceremonies on the parliament
square Austurvollur, 17 June 2011
17.6.2011
"It will take more than empty words to put Iceland back on its feet, it will take energy, thrift,
foresight and persistence."
Article by the Prime Minister of Iceland regarding the referendum on 9 April, '
published in Guardian today
13.4.2011
"In a referendum held last Saturday, the Icelandic people decided to reject a
legislation providing a state guarantee for the reimbursement payments by the
Icelandic Deposit Guarantee Fund to the governments of the United Kingdom and the
Netherlands."

-

A speech by Johanna Sigurdardottir, Prime Minister of Iceland on
Islendingadagurinn August 2nd 2010
2.8.2010
"We have a very special bond between Iceland and Canda - made strong by common history
and shared heritage."
A speech by Johanna Sigurdardottir, Prime Minister of Iceland, 31 July 2010
31.7.2010
"It is a great pleasure to stand here at this historic site - on the grounds of Borg in Mountain,
North Dakota - and be with you as you honor the heritage and history of Iceland. A country
far away but still in your hearts. I am touched and grateful to witness how dedicated you are
to the land of your forefathers and how determined you are not to forget where your ancestors
came from."
Prime Minister's Address to the Nation on 17 June 2010
21.6.2010
"Today, on this beautiful summer's day, we celebrate our national holiday all across the
country. We celebrate our independence and our joy at living our lives in this country, on our
bountiful island."
From Rescue to Recovery
14.10.2009
Prime Minister Johanna Sigurdardottir wrote an article in The Banker Magazine the 5th of
October 2009 about the future outlook one year after the economic crises hit Iceland with
severe consequences.
Prime Minister's Address Opening the Parliamentary Session on Monday, 05
October 2009
8.10.2009

http://eng.forsaetisraduneyti.is/minister/JS_speeches/

6/23/2013

Speeches and Articles | Minister | Prime Minister's Office ] Johanna Sigurdardottir 2009-2... Page 3 of 3
35664

Althingi reconvenes now following an unusually brief recess - in a year we will not soon
forget. It has been a very difficult time for the nation, because all of us suffered a shock when
so many things we trusted failed.
Prime Minister's Opening Address to the Icelandic parliament Althingi
20.5.2009
Prime Minister's, Johanna Sigurdardottir, Opening Address to the Summer Session of the
Icelandic parliament Althingi, on Monday, 18 May 2009.
Excerpts from the address delivered by Prime Minister Johanna Sigurdardottir at
the AGM of the Central Bank of Iceland, on 17 April 2009
21.4.2009
"Trust is a key word - not only during the economic downturn we are currently experiencing
and in financial markets, but in all areas of society and in government. Trust is the foimdation
of all our relations, and the foundation of a healthy, everyday society."
Platform of the Government - Report from the Prime Minister
6.2.2009
"It can have escaped no one that our country is passing through a deep economic downturn.
Within a very brief period, the government has had to act responsibly and determinedly, to
keep the wheels of business and industry turning and to reinforce the security net for the
nation's households and families."
Johanna Sigurdardottir, Prime Minister 2009-2013
1.2.2009

http://eng.forsaetisraduneyti.is/minister/JS_speeches/

6/23/2013

Johanna Sigurdardottir (prime minister oflceland) -Encyclopedia 8ritannica

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Jdhanna Sigurdard6ttir, (born Oct. 4, 1942, Reykjavik, Ice.), Icelandic politician who became prime minister of

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Sigurfiard6ttir worked as a flight attendant for Loftleifiir Icelandic Airlines from 1962 to 1971, and she was an
active labour union member, twice serving as chairman of the board of the Icelandic Cabin Crew Association
(1966, 1969). She took an office (/EBchecked/toptc/425680/office) job in Reykjavik in 1971. While there she
continued her association with organized labour, and she sat on the board of the Commercial Workers' Union. In
1978 Sigurflarddttir was elected to the Althingi (parliament) as a member of the Social Democratic Party,

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representing Reykjavik, She quickly gained a reputation as an advocate for social justice, and she called for the
strengthening of Iceland's welfare system. She was named minister of social affairs in 1987, a position she held
until 1994, when she unsuccessfully campaigned for leadership of the Social Democratic Party, Sigurdardottir
responded to this setback by forming her own party. National Movement, which captured four seats in the
subsequent parliamentary election. The two parties reconciled in 1999, when they joined with the Women's

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Alliance and the People's Alliance to contest that year's election; in 2000 the coalition formally became the Social
Democratic Alliance,
By this time Sigurdardottir had established herself as one of the leading personalities in Icelandic politics. She
returned to the ministry of social affairs in 2007, and she emerged as a voice of calm in the wake of Iceland's
financial collapse in 2008. After the resignation of conservative Prime Minister Geir Haarde in January 2009,
Sigurdardottir led a coalition of Social Democrats and Left-Greens to form a caretaker minority government. On
Feb. 1, 2009, she was formally sworn in as Iceland's prime minister. In the April elections the Social Democrats
and Left-Greens won 34 seats, capturing a slim majority in the 63-member parliament. Shortly thereafter
Sigurdardottir announced that one of her top priorities as prime minister would be securing Iceland's membership
in the European Union.
On June 27. 2010, the day that same-sex marriage became legal in Iceland, Sigurdarddttir and her partner
Jon ina Leosdottir were married by means of a simple conversion of their registered partnership.

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Johanna Sigurdardottir (prime minister of Iceland) - Encyclopedia Britannica

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6/23/2013

Former Ministers | Minister | Ministry for Foreign Affairs | Former Ministers | Minister |...

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35667

.MINISTRY FOR FOREIGN AFFAIRS

Former Ministers
Mr. Ossur SkarpheQinsson, February 2, 2009 - May 23, 2013
Mrs. Ingibjorg Solrun Gisladottir, May 24, 2007 - February 1, 2009
Mrs. ValgerSur Sverrisdottir; June 15, 2006 - May 24, 2007
Mr. Geir H. Haarde; September 27, 2005 - June 15, 2006
Mr. David Oddsson; September 15, 2004 - September 27, 2005
Mr. Halldor Asgrimsson; May 23, 2003 - September 15, 2004
Mr. Halldor Asgrimsson; May 28,1999 - May 23, 2003
Mr. Halldor Asgrimsson; April 23,1995 - May 28,1999
Mr. Jon Baldvin Hannibalsson; April 30,1991 - April 23,1995
Mr. Jon Baldvin Hannibalsson; September 10,1989 - April 30,1991
Mr. Jon Baldvin Hannibalsson; September 28,1988 - September 10,1989
Mr. Steingrimur Hermannsson; July 8,1987 - September 28,1988
Mr. Matthias A. Mathiesen; January 24,1986 - July 8,1987
Mr. Geir Hallgrlmsson; May 26,1983 - January 24,1986
Mr. Olafur Johannesson; February 8,1980 - May 26,1983
Mr. Benedikt Grondal; October 15,1979 - February 8,1980
Mr. Benedikt Grondal; September 1,1978 - October 15,1979
Mr. Einar Agustsson; August 28,1974 - September 1,1978
Mr. Einar Agustsson; July 14,1971 - August 28,1974
Mr. Emit Jonsson; July 10,1970 - July 14,1971
Mr. Emit Jonsson; August 31, 1965 - July 10,1970

http://www.mfa.is/minister/former-minsters/

6/23/2013

Former Ministers | Minister | Ministry for Foreign Affairs | Former Ministers | Minister |...

Page 2 of 3
35668

Mr. Gu9mundur I. Gu9mundsson; November 14, 1963 - August 31,1965
Mr. GuSmundur I. GuSmundsson; November 20,1959 - November 14,1963
Mr. Gu9mundur I. Gu9mundsson; December 23,1958 - November 20,1959
Mr. Gu6mundur I. GuSmundsson; July 24, 1956 - December 23,1958
Mr. Kristinn Gudmundsson; September 11, 1953 - July 24,1956
Mr. Bjarni Benediktsson; March 14, 1950 - September 11,1953
Mr. Bjarni Benediktsson; December 6,1949 - March 14,1950
Mr. Bjarni Benediktsson; February 4,1947 - December 6,1949
Mr. Olafur Thors; October 21,1944 - February 4,1947
Mr. Vilhjahnur Por, December 16,1942 - October 21,1944
Mr. Olafur Thors; May 16,1942 - December 16,1942
Mr. Stefan Job. Stefansson; November 18,1941 - January 17,1942

Ministers who handled foreign affairs i n former governments:
Mr. Stefan Joh. Stefansson; April 17,1939 - November 18,1941
Mr. Hermann Jonasson; April 2,1938 - April 17,1939
Mr. Haraldur Gu6mundsson; July 29,1934 - April 2,1938
Mr. Asgeir Asgeirsson; June 3,1932 - July 29,1934
Mr. Tryggvi Porhallsson; August 28,1927 - June 3,1932
Mr. Jon Porlaksson; June 26,1926 - August 28,1927
Mr. Jon Magnusson; March 22,1924 - June 26,1926
Mr. Sigur6ur Eggerz; March 7,1922 - March 22,1924

http://www.mfa.is/minister/former-minsters/

6/23/2013

Former Ministers | Minister | Ministry for Foreign Affairs | Former Ministers | Minister | ...

Page 3 of 3
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Mr. Jon Magnusson; December 1,1918 - March 7,1922

http://www.mfa.is/minister/former-minsters/

6/23/2013

r

Aljjingi - Ossur SkarpheQinsson

Page 1 of2
35670

Ossur Skarphedinsson

Date of Birth: June 19th, 1953
Telephone: +354 5630 500
E-mail: 05sur@althingi.is
Party: The Social Democratic Alliance
• Chairman of the Social Democratic Alliance 2000-2005.

Parliamentary Career
• Member of Althingi for the Reykjavik Constituency 1991-2003, the
Reykjavik North Constituency 2003-2009, the Reykjavik South Constituency
2009-2013 and the Reykjavik North Constituency since 2013.
Party Group
. Chairman of the parliamentary group of the Social Democratic Alliance
2006-2007.
• Chairman of the parliamentary group of the Social Democratic Party 19911993.
• Vice-Chairman of the parliamentary group of the Social Democratic Party
1995-1996.
Present committees
• Member of the Foreign Affairs Committee since 2013, 2005-2007 and 19951999 (Vice-chairman 1998 1999).
• Member of the Icelandic Delegation to the NATO Parliamentary Assembly
since 2013 and 2005-2007 (Chairman 2005-2007).
Earlier committees
Member of the Credentials Committee 2013.
Member of the Economy and Trade Committee 2001-2005.
Member of the Budget Committee 1999-2001.
Member of the Environment Committee 1999-2000.
Member of the Health and Social Security Committee 1995-1999 (Chairman
1995-1999)
Member of the Agriculture Committee 1992-1993 (Vice-Chairman 19921993).
Member of the Industry Committee 1991-1993 (Chairman 1991-1993).
Member of the Fisheries Committee 1991-1993 (Vice-Chairman 1991-1993).
Member of the General Affairs Committee on 1991-1992 (Vice-Chairman
1991-1992)

http://www.althingi.is/cv en.php4?ksfaerslunr=82

6/23/2013

Al|)ingi - Ossur Skarphedinsson

Page 2 of 2
35671

. Member of the Icelandic Delegation to the Parliamentary Assembly of the
Council of Europe 2003-2005.
. Member of the Icelandic Delegation to the WEU Assembly 1995-1999 (ViceChairman 1995-1999).
• Member of the Icelandic Delegation to the EFTA and EEA Parliamentary
Committees 1991-1993 and 1999-2004.

Ministerial Career
• Minister for Foreign Affairs 2009-2013.
• Minister of Industry 2007-2009.
• Minister for Nordic Co-operation 2007-2008.
• Minister for the Environment 1993-1995.

©Secretariat of Althingi
Contact us

http://www.althingi.is/cv_en.php4 ?ksfaerslunr=82

6/23/2013

35672

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 JUDICIAL NOTICE
Enclosure 13
24 June 2013

35673

Acronyms for PE 30
Time

Page*

Context

Translation

10:17:45am

2

OSINT

Open source intelligence

10:21:34am

3

Bi MTF

Bisexual male to female

10:27:06am

3

BTW

By the way

10:28:06am

3

DADT

Don't ask don't tell

10:42:55am

4

OGA

Other government agency

10:45:18am

4

s/if/if i

Substitute "if" for "if 1"

11:01:44am

5

K

Okay

11:01:47am

5

TTYL

Talk to you later

12:26:09pm

8

YT?

You, too?

12:53:41pm

9

s/Hilary/Hillary

Substitute "Hilary" for "Hillary"

12:56:43pm

9

<3

Love

1:48:50pm

10

Yanno?

You know?

1:56:43pm

11

PGP

Pretty good privacy

2:02:34pm

11

IDK

1 don't know

2:18:56pm

12

AFAIK

As far as 1 know

2:21:22pm

12

BRB

Be right back

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^H
8:06:55am

18

TWYS

Talk with you soon

12:13:25pm

21

Cx

Connection

2:23:51pm

24

COS

Because

2:26:18pm

24

s/only/only see/

Substitute "only" for "only see".

2:52:31pm

26

SOL

Shit out of luck

3:02:19pm

26

s/you/so

Substitute "you" for "so".

3:03:38pm

26

iono

1 do not know

3:31:48pm

27

s/a/the

Substitute "a" for "the"

3:40:33pm

28

BRB

Be right back

7:34:52am

31

Str8

Straight, in reference to sexual preference

2:32:58am

35

kk

Okay

2:33:03am

35

FWIW

For what it is worth

3:17:36am

35

NVM

Never mind

3:18:16am

35

t/v

Thank you

3:31:33am

36

riy

Really

1:38:43pm

36

g'day

Good day

1:40:18pm

36

WTF

What the fuck

1

35674

Acronyms for PE 30
2:04:05pm

39

pffft

Equivalent to a dismissal of a comment or a lack of interest

2:30:09pm

40

n/p

No problem

2:53:28pm

41

Infowise

Information wise

3:32:29pm

43

FFS

Facial feminizing surgery

3:57:29pm

45

cred

credentials

4:39:38PM

47

WL

Wikileaks

6:11:50pm

49

LTR

Long term relationship

35675

Acronyms for PE 123
Page
Date

Time

#

Context

Translation

5 March 2010

21:12:38

1

>nod<

Acknowledgment to a previous statement; equivalent
to nodding your head

5 March 2010

21:17:31

1

>yawn<

yawn

5 March 2010

21:20:54

1

=)

5 March 2010

22:53:22

1

Ping

Smile
Written attempt to determine connectivity between
users

6 March 2010

00:39:19

1

=P

sticking your tongue out

6 March 2010

07:08:11

2

XD

Laughing

7 March 2010

07:08:29

3

BRB

Be right back

7 March 2010

07:19:51

3

BTW

by the way

7 March 2010

07:23:52

3

BBK

be back ok?

7 March 2010

07:23:59

3

TTYL

Talk to you later

8 March 2010

05:48:43

4

Heya!

8 March 2010

06:05:29

4

s/mothers/months

Hello
Substitute mothers for months, to correct a previous
line that mistakenly included mothers

8 March 2010

06:28:29

5

OFAFBU

One flight away from being ugly

8 March 2010

06:35:30

6

Cya

See you later

8 March 2010

12:21:39

6

ETA

Estimated time of arrival

8 March 2010

12:22:33

6

Mb

Megabytes

10 March 2010

03:45:11

6

SFTP

Secure file transfer program

10 March 2010

06:00:40

7

WTF

What the fuck

10 March 2010

21:00:30

9

Mhmm

non-verbal affirmative

16 March 2010

22:34:24

10

17 March 2010

22:45:44

10

;)

Winking

17 March 2010

22:48:55

11

K

Okay

Pleasant smile

1



35676

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE RESPONSE TO
v. GOVERNMENT REQUEST FOR

JUDICIAL NOTICE DATED
MANNING Bradle E. PFC 24 JUNE 2013



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

DATED: 25 JUNE 2013



RELIEF SOUGHT

1. PFC Bradley E. Manning, by and through counsel, moves this court to deny the Government
request for judicial notice in part.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Government has the burden of persuasion. RCM 905(c)(2). The
burden of proof is by a preponderance of the evidence. RCM 905(c)(1).

FACTS

3. 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 disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight speci?cations of communicating
classified 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).

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 l6 December through 22 December 201 1, these charges were investigated by an Article 32

Investigating Of?cer. The charges were referred to a general court-martial on 3 February 2012.


5. The Defense does not request any witnesses be produced for this motion.

577,,

.-
.

V-

35677

LEGAL AUTHORITY AND ARGUMENT

6. In the interest of judicial economy, MRE 201 relieves a proponent from formally proving

certain facts that reasonable persons would not dispute. There are two categories of adjudicative
facts that may be noticed under the rule. First, the military judge may take judicial notice of
adjudicative facts that are ?generally known universally, locally, or in the area pertinent to the

knowledge or experience that is controlling. Instead, the test is whether the fact is generally

event.? MRE 201(b)(l). Under this category of adjudicative facts, it is not the military judge?s

706, 709 (N .M.C.A 1992). The second category of adjudicative facts is those ?capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be

known by those that would have a reason to know the adjudicative fact. US. v. Brown, 33 M.J.

questioned.? MRE 20l(b)(2). This category of adjudicative facts includes government records,
business records, information in almanacs, scienti?c facts, and well documented reports. Id. See
also US. v. Spann, 24 M.J. 508 (A.F.C.M.R. 1987). The key requirement for judicial notice
under this category is that the source relied upon must be reliable. Salzburg, Lee D. Schinasi
David A. Schlueter, Military Rules of Evidence, ?20l .02[3] at p. 2-7 (7th Ed., Matthew Bender
Co. 2011)

7. Under MRE 201(d), a military judge should take judicial notice if the proponent presents the
necessary supporting information. In making the determination whether a fact is capable of
being judicially noticed, the military judge is not bound by the rules of evidence. Id.
Additionally, the information relied upon by the party requesting judicial notice need not be
otherwise admissible. Id. The determination of whether a fact is capable of being judicially
noticed is a preliminary question for the military judge. See MRE 104(a).

8. Judicial notice is of adjudicative facts. Judicial notice is not appropriate for inferences a party
hopes the fact ?nder will draw from the fact(s) judicially noticed. Legal arguments and
conclusions are not adjudicative facts subject to judicial notice. US. v. Anderson, 22 M. J. 885
(A.F.C.M.R. 1985) (appropriate to take judicial notice of the existence of a treatment program at
a con?nement facility but not appropriate to take judicial notice of the quality of the program.).
See Appellate Exhibit 356.

9. The Defense objects to this Court taking judicial notice of the following requests by the
Government:

a. Wikileaks released a video titled ?Collateral Murder? on 5 April. The
Defense objects based on relevance. Whether or not Wikileaks released the aforementioned
video on 5 April is not relevant to Speci?cation 2 of Charge II. In order for the Government?s
theory of relevance to be accepted, the Court would have to assume that Wikileaks only releases
information that is ?closely held? within the meaning of 18 U.S.C. 793. The only issue that is
relevant is whether the charged video was closely held or not at the time of PFC Manning?s
disclosure. Its subsequent status and the release date by Wikileaks has no bearing on any fact at
issue.

b. Wikileaks released more than 390,000 records from the CIDNE Iraq
database on 22 October 2010. The Defense objects on the basis of relevance. For the reasons



stated above, the release of the records from the charged database is not relevant to determine
whether or not the records were closely held. Additionally, the release of these records from the
charged database does not make it more probable than not that PFC Manning stole, purloined, or
converted the CIDNE Iraq database. The fact that Wikileaks, or any other news organization,
published excerpts from the database on a particular date is irrelevant. Thus, any action by
Wikileaks outside the period of charged misconduct is not relevant to the charged offense.

c. Wikileaks released more than 75,000 records from the CIDNE Afghanistan
database on 25 July 2010. The Defense objects on the basis of relevance. For the reasons
stated above in and the Defense opposes the Government?s request for judicial notice.

(1. Wikileaks released more than 700 detainee assessment briefs produced by
JTF-GTMO on 25 April 2011. The Defense objects on the basis of relevance. For the reasons
stated above in and the Defense opposes the Govemment?s request for judicial notice.

e. Wikileaks release of the ACIC document on 15 March 2010. The Defense
objects on the basis of relevance. For the reasons stated above in the Defense opposes the
Govemment?s request for judicial notice.

f. Base salary of a Specialist, E-4 from 2003-2010. The Defense objects based
upon relevance. How much an E-4 makes in a given year is not relevant to how much the
charged database is valued for the purposes of 18 U.S.C. 641. Should the Government wish to
introduce evidence of this nature, it is free to do so through its witnesses subject to objection on
relevance and the opportunity for the Defense to cross-examine the witness.

g. Base salary of GS-12, from 2003-2010. The Defense objects based upon
relevance for the reasons stated above in

h. Existence of AR 25-1, dated 13 NOV 2007 and the de?nition of ?Information
System? from AR 25-2. The Defense objects based upon relevance. PFC Manning is not
charged under AR 25-1. While PFC Manning is charged under 25-2, PFC Manning is not
charged with a Speci?cation under 25-2 that requires proof of value. The de?nitions and
statements provided by this unrelated regulation do not establish, or help establish, that the
charged databases in this case had value. The Government is free to elicit witness testimony that
the allegedly stolen, purloined, or converted databases had value. If the Government elects to do
so, the Defense will then have the opportunity to object on relevance, personal knowledge, and
hearsay grounds. The Defense will also have the opportunity to cross examine the witness. The
Government, however, should not be permitted to rely upon an unrelated regulation that has
nothing to do with the charged databases to establish value.

i. Existence of 5400.11-R, dated 14 May 2007. The Defense objects based
upon relevance for the reasons stated above in

j. Thanksgiving 2009 was on November 26. The Defense does not object to the
fact that Thanksgiving Day occurred on 26 November in 2009.



35679

k. The term, is the top-level internet domain of Iceland. The Defense
objects based on relevance. The information is not relevant to prove that PFC Manning acted
wantonly as charged in Speci?cation 1 of Charge 11. The Court has received testimony from
numerous witnesses who testi?ed that PFC Manning was permitted to search for whatever he
wanted on the SIPRNET during his work day or free time. As such, any speci?c search
allegedly done by PFC Manning does not make it more likely than not that PFC Manning acted
?wantonly? and thus, is not relevant.

1. Positions of various Icelandic politicians. The Defense objects based on
relevance for the reasons stated above in

In. Internet chat lingo and their meanings. The Defense does not believe that this
?lingo? is proper for judicial notice. The Court can use its common sense when reading the
chats, but several of the meanings are open to interpretation and thus do not fall within the type
of infonnation that can be the subj ect of judicial notice. The Government is free to provide its
interpretation of the various terms in the chat logs through its witnesses. If the Government
elects to do so, the Defense will then have the opportunity to object on relevance, personal
knowledge, and hearsay grounds. The Defense will also have the opportunity to cross examine
the witness.

CONCLUSION

10. Based on the above, the Defense requests that the Court deny, in part, the Government?s
request for judicial notice.

Respectfully Submitted



JO UA J. TO AN

Defense Counsel



35680

DEPARTMENT OF THE ARMY
u.s. ARMY MILITARY DISTRICT or
103 rmao AVENUE
FORT LESLEY J. ucmun, oc 20319-5013

REPLY TO
ATTENTDN OF

ANCG I 1? JUN, 2013

MEMORANDUM FOR CPT G2, First Army Division Bast, Fort Meade, MD
20755

SUBJECT: Grant of Testimonial Immunity

1. As an officer empowered to convene general courts-martial and pursuant to Rule for Courts-
Martial (R.C.M.) 704, I hereby make the following ?ndings:

a. You possess information relevant to the pending court martial - United States v. PFC
Bradley Manning.

b. Based on your privilege against self-incrimination, you may refuse to fully convey the
information you possess regarding this case.

c. Your testimony before any court-martial that may be convened to try PFC Manning, and
your cooperation with law enforcement officials and counsel investigating allegations that may
result in such proceedings, is necessary to the public interest, including the needs of good order
and discipline of this command.

2. Based on the above facts and pursuant to R.C.M. 704, I hereby order you to fully cooperate
with and provide truthful and complete information to law enforcement officials and counsel
during the investigation of PFC Manning, and to further provide truthful and complete testimony
before any administrative board or court-martial convened to process or try PFC Manning.

3. No testimony or other information given by you pursuant to this order or any information
directly or indirectly derived from such testimony shall be used against you in a criminal case or
under Article 15, UCMJ, except in a prosecution for perjury, giving a false statement, or
otherwise failing to comply with this order.

4. The grant of immunity embodied in this order constitutes a grant of testimonial immunity
pursuant to R.C.M. 704(a)(2) and becomes eifective upon service on the trial

counsel assigned to United States v. PEQ Brgley Manning.

MICHAEL S. GTON
Major General, U.
Commanding

APPELLATF.


PAGES

0 0 35681

Headquarters and Headquarters Company, U.S.

Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221 1

DATED: l5 July 2013

UNITED STATES
POST-TRIAL AND APPELLATE
v. RIGHTS
(General Court-Martial)

MANNING, Bradley E., PFC
U.S. Army,




1, PFC Bradley E. Manning, the accused in the above entitled case, certify that my trial defense
counsel and my civilian defense counsel have advised me of the following post-trial and appellate
rights in the event that I am convicted of a violation of the Uniform Code of Military Justice.

I. In exercising my post-trial rights, or in making any decision to waive them, 1 am entitled to the
advice and assistance of military counsel provided free of charge or civilian counsel provided at no
expense to the government.

2. After the record of trial is prepared, the convening authority will act on my case. The convening
authority can approve the sentence adjudged (as limited by any pretrial agreement), or he can approve
a lesser sentence, or disapprove the sentence entirely. The convening authority cannot increase the
sentence. He can also disapprove some or all of the ?ndings of guilty. The convening authority is not
required to review the case for legal errors, but may take action to correct them.

3. Under Rules for Court?Martial 1 105 and H06, I have the right to submit any matters to the
convening authority that I wish him to consider in deciding what action to take in my case. These
matters include, but are not limited to, a personal statement, personal letters and documents, letters and
documents from any other person, requests for deferment and waiver of forfeitures, and any other
matter I desire the convening authority to consider before taking action in my case.

a. Before the convening authority takes action, the staff judge advocate will submit a
recommendation to the convening authority. This recommendation will be sent to me and/or my
defense counsel before the convening authority takes action.

b. If I have matters that I wish the convening authority to consider, or matters in response to the
staff judge advocate?s recommendation, such matters must be submitted within 10 days after I receive
a copy of the record of trial or the recommendation of the staff judge advocate, whichever occurs later.
If I authorize substitute service in accordance with paragraph 12 of this form, the I0 day period begins
to run a?er my counsel receives the record of trial or the staff judge advocate?s recommendation,
whichever occurs later.

c. Upon my request, the convening authority may extend this period, for good cause, for not
more than 20 days.

i
Page 1 of 5 Pages



0

d. I understand that I must work with my defense counsel to assist him/her in collecting and
preparing those matters I want to be submitted to the convening authority, and in that regard I must
remain in contact with my defense counsel even after my case has been tried.

(Strike through inapplicable portions). I (authorize) my defense
counsel to submit matters pursuant to RCM 1105 and 1106 on my behalf in the event that he is unable
to contact me after making reasonable efforts to ?nd me in accordance with TDS policy.

4. If the convening authority approves an adjudged punitive discharge (dismissal for of?cers; bad-
conduct or dishonorable discharge for enlisted soldiers) or con?nement for one year or longer, my case
will be automatically reviewed by the Army Court of Criminal Appeals (ACCA). I am entitled to be
represented by counsel before such court. If I so request, military counsel will be appointed to
represent me at no cost to me. If I so choose, I may also be represented by civilian counsel at no
expense to the United States.

5. After the ACCA completes its review, I may petition the United States Court of Appeals for the
Armed Forces (CAAF) to review my case. If that Court grants my petition, I may request review by
the Supreme Court of the United States. I have the same rights to counsel before those courts as I have
before the ACCA. If I am pending an approved dishonorable or bad-conduct discharge it may only be
ordered executed after completion of the appellate process in accordance with Rule for Court-Martial
1209, unless I waive appellate review.

6. If the convening authority approves no punitive discharge and approves con?nement for less than a
year, my case will be examined in the Of?ce of The Judge Advocate General for any legal errors and
to determine if the sentence is appropriate. The Judge Advocate General (TJAG) may take corrective
action as appropriate. This mandatory review under Article 69(a), UCMJ, will constitute the ?nal
review of my case unless TJAG directs review by the ACCA.

7. I may waive or withdraw review by the appellate courts after action has been taken by the
Convening Authority. I cannot waive or withdraw appellate review before action. I understand that if I
waive or withdraw review:

a. My decision is ?nal and I cannot change my mind.

b. My case will then be reviewed by a military lawyer for legal error. It will also be sent to the
general court-martial convening authority for ?nal action.

c. Within two (2) years after the sentence is approved, I may request The Judge Advocate
General (TJAG) to take corrective action on the basis of newly discovered evidence, fraud on the
court-martial, lack of jurisdiction over me or the offense, error prejudicial to my substantial rights, or
the appropriateness of the sentence.

8. I understand that any period of con?nement included in my sentence begins to run from the date the
court-martial adj udges my sentence. I may request that the convening authority defer commencement
of con?nement. The decision to defer con?nement is within the sole discretion of the convening
authority.

9. Adjudged forfeitures and reduction in rank.

Page 2 of 5 Pages





0 0 35683

a. Any forfeitures adjudged in my case are effective 14 days after the sentence is adjudged or
when the convening authority takes action, whichever occurs ?rst, unless adjudged forfeitures are
deferred. If forfeitures are adjudged at the court-martial, I understand that I may petition the
convening authority to defer them until action and to disapprove, mitigate, or suspend them at action.

b. Adj udged reduction (enlisted personnel only). Any reduction in rank adjudged in my case is
effective 14 days after the sentence is adjudged or when the convening authority takes action,
whichever occurs ?rst, unless the reduction is deferred. If a reduction is adjudged at the court?martial,
I understand that I may petition the convening authority to defer a reduction in rank until action and to
disapprove or suspend it at action.

10. Automatic forfeitures. I understand that by operation of Article 58b of the Uniform Code of
Military Justice, any sentence that includes con?nement for more than 6 months, or con?nement for 6
months or less and a punitive discharge, will result in automatic forfeitures during any period of
con?nement even if no forfeitures are adjudged. In the case of a General Court-Martial, automatic
forfeitures are for all pay and allowances. In a Special Court?Martial, the automatic forfeitures are for
two-thirds of pay. Automatic forfeitures go into effect 14 days after my sentence is adjudged or when
the convening authority takes action, whichever occurs ?rst.

$56? a. I understand I may petition the convening authority to defer adjudged or automatic
forfeitures, if any, until the time of ?nal action, but such relief is solely within the discretion of the
convening authority, who may rescind deferment at any time.

Eta b. I understand that if I reach my ETS date while I am in con?nement all my pay and
allowances will stop on my ETS date, even if a request for deferment or waiver of automatic
forfeitures is granted.

c. I further understand that if I reach my ETS date while I am in con?nement all my pay
and allowances will stop on my ETS date, even if a request for deferment or disapproval of adjudged
forfeitures is granted.



$16? e. I understand that if adjudged forfeitures are not deferred or disapproved, I will not
receive pay even if automatic forfeitures are waived.

1. I have read and had my post-trial rights explained to me by counsel and I acknowledge these rights
and make the elections set forth below.

91"? a. I understand my post-trial and appellate review rights.

g? Pl? b. I understand that a copy of the authenticated record of trial will be served on me, or if I
so request, will be forwarded to my defense counsel pursuant to RCM ll04(b).

Select only one of the following three numbered options. Option (4) is the recommended best
option in most cases Ifyou use option (2), be sure to select the appropriate language and
eliminate the excess language.

Page 3 of 5 Pages



0 0 35684

(1) I want the record of trial sent to only me;

(2) (Indicate counsel.) I authorize substitute service of the ROT if the SJAR
and ROT are served (two weeks) before (I complete my term of con?nement) (my minimum release
date)(specijfv a date) (the 120th day after the sentence in my case was announced). If the SJAR and
ROT are served (two weeks) before (I complete my term of con?nement) (my minimum release date)
(speci?z a date) (the 120th day after the sentence in my case was announced), the record of trial may be
served on my defense counsel, . If the SJAR and ROT are not served (two weeks) before
(I complete my term of confinement) (my minimum release a date) (the 120th day after
the sentence in my case was announced), the record of trial shall be served on me;

(3) (Indicate counsel.) I want the record of trial forwarded to my defense
counsel,

(4) (Indicate counsel.) I want the record of trial sent to me AND I request that

my defense counsel ?g Qhv/I {gil? be provided a copy at the same time I receive

my copy in order to expedite preparation of post-trial matters.

33/? c. I further understand that individual copies of the staff judge advocate?s post trial
recommendation will be served on me and my defense counsel pursuant to RCM 1 106(1).

(Indicate counsel.) My defense counsel VAJIO E. (00905 will submit
R.C.M. 1105 and 1106 matters in my case if I desire. I further understand that I must stay in contact
with this counsel to assist him in collecting and preparing the matters for submission.

12. (Strike through inapplicable portions13. (Strike through inapplicable portions.) .-



14. I understand that if my case is to be heard by the Army Court of Criminal Appeals, I have the right
to be represented free of charge by Appellate Defense Counsel appointed by The Judge Advocate
General (TJAG) of the Army. I may also waive this right after the Convening Authority takes action. I

understand that I may contact my Appellate Defense Counsel writin to Defense A Ilate
Division, u.s. Army Legal Services Agency (JALS-DA).
will I have been informed that I have the right to retain civilian counsel at my own expense to

represent me in my appellate decisions. If I have already retained civilian counsel, his/her name and
address is written below:

Si?) If I later retain civilian counsel, I must provide the attomey?s name and address to: Clerk
of Court, The U.S. Army Court of Criminal Appeals, 9275 Gunston Road, Fort Belvoir, VA 22060.
Phone: (703) 693-1309. DSN: 223-1309. FAX: (703) 806-0124. DSN 223-0124.

15. Pending action on my case, I can be contacted or a message may be left for me at the following
address:

Page 4 of 5 Pages

0 35685



NAME: M3. DBQR9 M. \ll?l\l



EMAILADDRESS:
CIVILIAN PERMANENT EMAIL ADDRESS:
PERSONAL





EDWARD MANNIN
PFC, US Anny
Accused

Date: _i

I certify that I have advised PFC Bradley Manning regarding his post-trial and appellate rights as set
forth above, that he has received a copy of this document, and that he has personally made all the
elections herein.

Date: aol 3
A ID EDWARD BS

Civilian Defense Counsel

Page 5 of 5 Pages

35686

DEPARTMENT OF THE ARMY
U.S. ARMY MILITARY DISTRICT OF WASHINGTON
102 3RD AVENUE, BLDG 39, SUITE 2
FORT LESLEY J. MCNAIR, DC 20319-5031
REPLY TO
ATTENTION OF:

June 24, 2013

ANCG
MEMORANDUM FOR SEE DISTRIBUTION
SUBJECT: Assumption of Command By Authority of Paragraph 2-6, AR 600-20

The undersigned assumes command of United States Army Military District ofWashington
(WOGVAA), Fort Lesley J. McNair, DC 20319, effective 0001, 24 June 2013

5FFREY S. BUCHANAN
MG, US Army
Commanding
DISTRIBUTION:
A

^.
FA'ji--

PAGE

ITgj^O

1
i^-

Of

PAGES

35687

UNITEDSTATESOF AMERICA
V.

Manning, Bradley E.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

witness List Order
for the Defense
witnesses
2^June2^13

The Defense hereby submits the following order fi^r the first ten witnesses the Defense
intends to call in the above-captioned court-martial:
1.
2
3
4.
5.

CW2 Joshua Ehresman
CPTBarclayl^eay
SGTDavidSadtler
Ms. Lauren McNamara
Col(r)Morris Davis

6. Mr.CassiusHall
7. Mr. Charles Ganiel
8. Stipulation Defense ExhibitB
9. ProfessorYochaiBenkler
10. Mr.TrentStruttman

DAVID EDWARDCOOMBS
Civilian Defense Counsel

4^^^

35688

UNITED STATES OF AMERICA
RULING: Motions by Parties
for Judicial Notice of
Adjudicative Facts
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

27 June 2013

Defense Requested Judicial Notice-On 15 June 2013,the Defense filed3motions for judicial
notice(AE569^571)requesting the Court to take judicial notice of the following adjudicative
facts:
1. Thel3October2010classification assessment conducted by RADM ^evin Donegan,
Director ofOperations at CENTCOM,regarding the ApacheVideo(PE 15).
2. The audio transcript for PE 15.
3. On or about 25 November 2009, WikiLeaks published what it claimed to be text and pager
messages sent onllSeptember 2001. The Defense does not request the Court to take judicial
notice of the messages themselves or that the messages are actually fiomllSeptember 2001.
4. On 25 July2007,Reuters madeaFOIA request to DoD for video and audio recordings
relating to the deaths ofMr. Namir NoorEldeen and Mr. Saeed Chmagh, Reuters journalists.
CENTCOM responded to the Reuters request on24 April 2009.
Onl9June 2013,the Government filedabriefopposing(l),(2), and(4)above(AE 574). After
oral argument, the Government revised its position and did not object to (2), (3),and(4) above.
The parties stipulate that Enclosure2toAE 574 is an accurate transcript of the audio ofPE15.
The Government objected to the classification assessment in(l)as hearsay not admissible asa
statement ofaparty opponent under MRE 802(d)(2)(D).
The Court will grant Judicial Notice for (2),(3), and(4). The only remaining issue regarding the
Defense motions forjudicial notice is whether the Court will takejudicial notice of(l).
Government requests forJudicialNotice On 25 June 2013,the Government filedamotion
for Judicial Notice(correctedcopy)atAE 576 moving the Court to take notice of the following
adjudicative facts:
AdjudicativeFacts^ ^il^iLeal^ Releases
a. WikiLeaks released avideo titled ^^Collateral Murder" on5April 2010^

All

jATEP.XHmiTS^j:,

rAGcRErF.R':-!^^^^:
_
PAGES
PAGE
.01__

35689

b. WikiLeaks released more than390,000 records fiom the Combined Information Data
Network Exchange(CIDNE) Iraq database on 22 October 2010^
c. WikiLeaks released more than 75,000 records from the CIDNE Afghanistan database
on25 July 2010^
d. WikiLeaks released more than 700 detainee assessments produced by JointTaskForce
Guantanamo (JTF GTMO)on25April2011^
e. WikiLeaks releasedamemorandum produced by the Army Counterintelligence Center
titled ^^Wikileaks.org—An Online Reference to Foreign Intelligence Services, Insurgents, or
Terrorist Groups7" on 15 March2010^
AdjudicativeFacts: Salary ofServicemembers and Government Employees
f The monthly base salary for Servicemembers at the rank ofSpecialist,E-4,was
^l,50270in2003,^1,558 20 in2004,^l,612 80in2005,^l,662 90in2006,^l,699 50in2007,
^I,758 90in2008,^l,827 60in2009,and^l,88970in2010^
g. The yearly base salary for government employees at the grade o f l 2 o n the General
Schedule(GS) scale was ^51,508 in2003,^52,899in2004, ^54,221 in2005,^55,360 in2006,
^56,301 in2007,^57,709in2008, ^59,383 in2009,and^60,274in2010^
AdjudicativeFacts: Reference Materials
h. The existence of Army Regulation (AR)25-1,dated 13November 2007,specifically
paragraphsl-l,subparagraphs(a)and(b)ofl7,andsubparagraphs(d),(e),and(f)of61and
the definition found in AR25 2 of^^InformationSystem^"
i. The existence ofDoD 5400.11-R: Department ofDefense Privacy Program, datedl4
May 2007,specifically Appendixland the definition of^^Personal Informations"
AdjudicativeFacts: Miscellaneous
j . Thanksgiving of2009 occurred on 26 November 2009^
k. The term,^^.is,"is the top level internet domain oflceland^
1. Johanna Sigurdardottir was the Prime Minister oflceland fiom February2009 May
2013, Ossur Skarphedinsson was the Icelandic Minister for Foreign Affairs fiom February 2009
^May 2013,Albert Jonsson was the Icelandic Ambassador to the United States from 2006 2009,
and BirgittaJonsdottir has heenamember of the Icelandic parliament since 2009^ and
m.The Internet chat lingo and their meanings in Enclosurel3 are synonymous.

35690

On 25 June 2013,the Defense filedabrief objecting to all of the above except (j)and(m)on the
groundsofrelevance. The Defense did not object to (j) and objected to(m)as an improper
subject forjudicial notice. At oral argument, the Defense conceded that(a) (l) were properly
judicially noticed adjudicative facts if relevant. Thus,with the exception of(j), all ofthe
Govemment'smotions for judicial notice remain at issue.
The Law: Judicial Notice
1. Military Rule ofEvidence (MRE) 201govems judicial notice of adjudicative facts. The
judicially noticed fact must be one not subject to reasonable dispute in that it is either(l)
generally known universally,locally,or in the area pertinent to the event or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned^^^A^^^^/^^^,23MJ 383 ( C M A 1987)^^^^.^^^^^,33MJ706
(ACMR1991)
2. MRE 201(c)requires the military judge to take judicial notice of adjudicative f^cts if
requested byaparty and supplied with the necessary information.
3. When the militaryjudge takesjudicial notice ofadjudicative facts, the factfinderis instructed
that they may,but are not required to,accept as conclusive any matter judicially noticed.
4. Judicial notice is ofadjudicative facts. Judicial notice is not appropriate for inferencesaparty
hopes the factfinderwill draw from the fact(s)judicially noticed. Legal arguments and
conclusions are not adjudicative facts subject to judicial notice. ^.i^.^.Bf^^^^.^^^,22M.J.885
(A.F.C.M.R. 1985)(appropriate to take judicial notice ofthe existence ofatreatmcnt program at
aconfinement facility but not appropriate to takejudicial notice ofthe quality ofthe program.).
The Law: Hearsay
1. Hearsay isastatement, other than the one made by the declarant while testifying at the trial,
offered in evidence to prove the truth ofthe matter asserted. MRE 801(c). Hearsay is not
admissible except as provided by the Military Rules ofEvidence or by anyAct of Congress
applicable in trials by court-martial. MRE 802.
2. Admission byaParty Opponent. MRE 801(d)(2)(D)provides in relevant part that admissions
byaParty Opponent are not hearsay if the statement is offered againstaparty and isastatement
by the party'sagent or servant concerningamatter within the scope of the agency or
employment of the agent or servant made during the existence of the relationship....The contents
ofthe statement shall be considered but are not alone sufficient to establish the declarant's
....agency or employment relationship and the scope thereofunder(D). Consistent with the
Court'sl8October2012Ruling: Defense Motion: Motion for Judicial Notice of Adjudicative
facts^Finkel Book and Public statements(AE 356), the Court adopts the three-part test adopted
bythe Second Circuit in ^^^^^^^^^^^.^v^^/^^^^,937F.2d 797,811 (2^^ Cir 1991)todetermine
ifthe classification assessment by RADM Donegan qualifies as an admission under MRE
801(d)(2)(D)against the Government and is worthy ofjudicial notice. The three part test
requires the Court,^^^to^be satisfied that the prior^statementj involves an assertion of fact

35691

inconsistent with similar assertions inasubsequent trial. Second, the court must determine that
the^statementsjwere such as to be the equivalent oftestimonial statements....Last, the district
court must determine byapreponderance of the evidence that the inference that the proponent of
the statements wishes to draw isafair one and that an innocent explanation for the inconsistency
does not exist."^^/^^^^,937F.2dat811(2d Cir. 1991)(quoting^^^^^^^^^^^.^^^^^^^^, 738
F.2d26,33 (2d Cir 1984)(quotations omitted)^ .^^^^/.^^^^^^^^^^^^^.^^^^.^^^^/^,34F3d
1001,1005 (llthCir.l994)(adopting the test fiom^^/^^^^)The fact thatastatement is
admissible againstaparty opponent does not bind the party to that statement. The party against
whom suchastatement is made can rebut the statement and assertadifferent or contrary
position^^^.^^//^^^.403 Md 308,328,fnl9
The Law: Use ofStatements Made by an Accused during the Providence Inquiry in the
Merits of theTrial. An accused'sguilty plea toalesser included offense may be used to
establish elements ofthe greater offense during the contested portions ofthe trial. Statements
made by the accused during the providence inquiry,whether orally or in writing, are not
evidence that is before the trier offact and may not be considered during the contested portion of
the trialRCM913(a) Discussions ^ ^ ^ ^ ^ ^ ^ / ^ ^ , 5 5 M J 223 ( C A A F 2001)
Conclusions ofLaw:
Defense Motion for Judicial Notice ofclassification Assessment ofRADM Donegan.
1. The Court will not consider any statements made by the accused during the providence
inquiry as evidence to support any ofthe requests forjudicial notice.
2. RADM Donegan'sstatement meets the ^^/^^^^ test and qualifies as an admission ofaparty
opponent under MRE 801(d)(2)(D). RADM Donegan was acting in hisofficial capacity as
Director ofOperations, CENTCOM,when he made the classification assessment. The
classification assessment states facts inconsistent with the Stipulation ofExpectedTestimony of
CW5John Larue at PE117. The inference the Defense wishes to draw isafair one.
3. The Court will take Judicial Notice ofthe 13 October 2010classification assessment by
RADMDonegan.
Government Motion forjudicial Notice. The facts in(a)^(l) are adjudicative facts capableof
accurate and ready determination ofby resort to sources whose accuracy cannot reasonably be
questioned.
AdjudicativeFacts: ^il^iLeal^s Releases
a. WikiLeaks released avideo titled ^^Collateral Murder" on5April 2010^
b. WikiLeaks released more than 390,000 records fiom the Combined Information Data
Network Exchange(CIDNE) Iraq database on 22 October 2010^

35692

c. WikiLeaks released more than 75,000 records from the CIDNE Afghanistan database
on25 July 2010^
d. WikiLeaks released more than 700 detainee assessments produced by JointTaskForce
Guantanamo(JTF-GTMO)on25 April 2011^
e. WikiLeaks releasedamemorandum produced by the Army Counterintelligence Center
titled ^^Wikileaks.org—An Online Reference to Foreign Intelligence Services, Insurgents, or
Terrorist Groups7" on 15March2010^
All ofthe Wikileaks releases are relevant to show the path ofinformation allegedly from the
accused throughWikiLeaks with opportunity to access it by the enemy for the specification of
ChargeI(Aiding the Enemy)and for the caused to be published element of specificationlof
Charge II (Wantonly Caused to be Published). In addition(a)^(e)are relevant to facts at issue
as to whether the accused stole, purloined, or knowingly converted information and whether the
information was closely held by the Government for the following specificationsofCharge II:
(a) specification 2^ (b)^specifications4and5^(c)^specifications6and7^(d)specifications8
and 9^ and(e)specification 15.The Court will take judicial notice of(a)^(e).
AdjudicativeFacts: Salary ofServicemembers and Government Employees
f. The monthly base salary for Servicemembers at the rank ofSpecialist, E-4,was
^l,502 70in2003,^1,558 20 in2004,^l,612 80in2005,^l,66290in2006,^l,699 50in2007,
^1,758 90 in2008,^l,827 60 in2009,and^l,88970in2010^
g. The yearly base salary for government employees at the grade o f l 2 o n the General
Schedule(GS) scale was ^51,508 in2003,^52,899in2004,^54,221 in2005,^55,360 in2006,
^56,301 in2007,^57,709in2008, ^59,383 in2009,and ^60,274 in2010^
The monthly and yearly base salaries ofServicemembers and government employees in the
grade ofGS 12 are relevant toafact in issue to prove value ofthe information in specifications8
andl6of Charge II. The Court will takejudicial notice of(f^ and (g).
AdjudicativeFacts: Reference Materials
h. The existence of Army Regulation(AR) 25-1,dated 13November 2007,specifically
paragraphsl-l,subparagraphs(a)and(b)ofl-7,andsubparagraphs(d),(e),and(f)of6-land
the definition found in AR25 2of^^InformationSystem^"
i. The existence ofDoD 5400.11-R: Department ofDefense Privacy Program, datedl4
May 2007,specificallyAppendixland the definition of^^Personal Informations"
The references in AR 25 1,AR 25 2,and DoD 5400 Rare relevant toafact at issue in
specificationl6of Charge I l ^ t o prove that the information stolen wasathing of value to the
United States and are also relevant toafact at issue in specification4of Charge I l l - t o prove

35693

that the accused used an information system foramanner other than its intended use. The Court
will take judicial notice of(h)and(i).
AdjudicativeFacts: Miscellaneous
j.Thanksgiving of2009 occurred on 26 November 2009^
k.Theterm,^^.is,"is the top level internet domain oflceland^
1. Johanna Sigurdardottir was the Prime Minister oflceland fiom February2009 May
2013, Ossur Skarphedinsson was the Icelandic Minister for Foreign Affairs from February 2009
^May2013,Albert Jonsson was the Icelandic Ambassador to the United States fiom 2006-2009,
and BirgittaJonsdottir has heenamember of the Icelandic parliament since 2009^ and
m.The Internet chat lingo and their meanings in Enclosure 13are synonymous.
The Defense does not object to the Court takingjudieial notice of (j). The terms and names in
(k)and(l) were used by the accused in searches on Intelink and chats with Press
Association/JulianAssange(PEs81^123^andl27). The facts at (k)and(l) are relevant to
explain to the factfinderthe terms used in the searches and chats by the accused and are also
relevant to whether the accused acted wantonly for specificationlof Charge II (Wantonly
Caused to be Published). The Government has provided no references fbr(m)otherthanachart
ofchat terms and translations prepared by an unknown person or entity. The facts at(m)are not
adjudicative facts capable ofaccurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. The Court will takejudicial notice of(j),(k), and (1).
The Court will not takejudicial notice of(m).
Ruling: The Defense motions forjudicial notice are Granted. Government motion forjudicial
notice is Granted in Part. The Court will takejudicial notice of(a) (1). The Court will not
take judicial notice of(m)(meaningsofintemet chat lingo).
SoOrdered this 27^^ day ofJune 2013

DENISERLIND
COL,JA
ChiefJudge, 1^^ Judicial Circuit

35694

UNITED STATESOF AMERICA

Manning,BradleyE.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

witness List Order
for the Defense
witnesses
27June2013

The Defense hereby submits the following order forthe first ten witnesses the Defense
intends to call in the above captioned court martial:
1.
2.
3.
4.
5.

CW2 Joshua Ehresman
CPT Barclay Keay
SGTDavidSadtler
CPT Steven Lim
Ms. Lauren McNamara

6. Col(r) Morris Davis
7. Mr.CassiusHall
8. Mr. Charles Ganiel
9. Stipulation Defense ExhibitB
10. ProfessorYochaiBenkler

DA^VID EDWARD COOMBS
Civilian Defense Counsel

APPELLATE EXnmiT 5 i 3
PAGE REFERENCED:
PAGE
OF
TAGES

35695

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULING: GOVERNMENT
MOTION TO ADMIT
v. PROSECUTION EXHIBITS 31, 32,
AND 109 FOR IDENTIFICATION
MANNING, Bradley E., PFC
U.S. Army,
HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall DATED: 28 June 2013
Fort Myer, Virginia 22211

On 10 June 2013, after hearing testimony from Special Agent (SA) Mander, the Court ordered the
parties to ?le briefs on the admissibility of Prosecution Exhibits (PE) 31, 32, and 109 for Identi?cation
(ID). On 15 June 2013, the parties ?led briefs (Government at AE 567; Defense at AE 568). On 18 June
2013, the Court heard oral argument from counsel. On 27 June 2013, the Government recalled SA
Mander and offered into evidence. The Court has considered the
?lings by the parties, evidence presented, the testimony of Special Agent (SA) Mander, and oral argument
of counsel. The Court ?nds and rules as follows:

On 10 June 2013, the Government offered Prosecution Exhibits (PEinto
evidence through the testimony of SA Mander. On 27 June 2013, the Government offered PEs 31A and
and PEs 32A and into evidence via additional testimony from SA Mander. The Government offers to
authenticate PEs 3 I 31A, 3 I B, 32, 32A, and 32B for ID in accordance with (IAW) MRE 901(b)(1)
(Testimony of a Witness with knowledge SA Mander) and MRE 901(b)(4) (Distinctive Characteristics
and the Like: the appearance, contents, substance, internal patterns, or other distinctive characteristics of
the item, taken together with all the circumstances). The Government offers to authenticate PE 109 for
ID as a self-authenticating business record IAW MRE 803(6) and MRE 902(l 1) and IAW MRE 901(b)( l)
(Testimony of a Witness With Knowledge) through the testimony of SA Mander and the attestation by
Mr. Christopher Butler, Of?ce Manager of archive.org (AE 567, enclosure 1).

Findings of Fact:
PEs 31, 31A, 31B, 32, 32Aare screen captures from Google Cache, a website that archives past versions of
other websites. In this caseare Google Cache archives of WikiLeaks' twitter.com
postings. SA Mander is unfamiliar with the process of how google cache archives web postings.

2. WikiLeaks has an account on the twitter website. Twitter accounts post messages in chronological
order with the most recent on top. All published messages remain on the site inde?nitely.

On or about August 2012, SA Mander accessed the WikiLeaks account on twitter through a google
search. The WikiLeaks account or ?feed? had thousands of messages, making searches for particular
tweets onerous directly through the WikiLeaks feed. SA Mander then looked for speci?c WikiLeaks
tweets by using search terms on google. The search terms caused google to pull up the twitter website
with the tweets are screen captures taken by
SA Mander on or about August 2012 while he was reviewing the WikiLeaks tweets on the twitter

1

534

.

35696

website. SA Mander typed the uniform research locater (URL) address of each tweet in a text box in the
screen capture135708784407530875613. SA Mander
personally viewed the WikiLeaks twitter account and found that the tweets on the account have the same
web address except for a serial number unique to each tweet. SA Mander visited the twitter page for
WikiLeaks on or about 3 June 2013 and, again, on 27 June 2013. On 27 June 2013, SA Mander typed google search and retrieved the twitter website with the tweet in PE 32B. From
the twitter website, SA Mander then typed in the URL for PE 31A and retrieved the tweet in PE 31B. SA
Mander took screen shots of both tweets. PE 31B and PE 32B have the same URL as PE 3 A and 32A
except that PE 31B and PE 32B begin the URL with rather than ?http? and they do not have the
Nevertheless, a search using the URL for PEs 31A and 32A for ID in google retrieves PEs 31B
and 32B for ID. Also on 27 June 2013, SA Mander went directly to the WikiLeaks feed on twitter to try
to ?nd the tweets in PE 31 and 32 for ID. The feed would not let him have access to messages prior to
March, 2013. SA Mander has never viewed the tweets directly from the
WikiLeaks twitter feed.

3. PEs 31, 31A, 3 1 B, 32, 32A, and 32B for ID have the following distinctive characteristics attributable
to WikiLeaks: the tweets feature the WikiLeaks logo; they feature WikiLeaks name as the account name
?WikiLeaks? used on Twitter; the serial numbers the URL are the same for PEs 31, 31A, and 31B for
the serial numbers for the URL of PEs 32, 32A, and 32B are the same; and the content of the tweets in the
PE 31 for ID series of exhibits and the PE 32 for ID series of exhibits relates to the information allegedly
compromised by PFC Manning.

4. The date and time of the tweets in PEs 31, 31A, and 31B for ID are the same and are actually on the
tweets themselves and not generated from Google.cache or any other internet archive process. PE 31,
31A, and 31B are screen images of the same tweet with the WikiLeaks label, logo, text, time/date, and
URL serial number. The same is true for the date and time of the tweets in PEs 32, 32Ascreen capture from archive.org, another website that archives past versions of
websites from across the internet. More speci?callywebpage from archive.org
purporting to show a WikiLeaks.com webpage available on the internet on 5 November 2009 at 06: 13:30.

2. SA Mander has not viewed the original WikiLeaks.com webpage that the archive.org webpage

purports to have archived as PE 109 for ID. He also has no personal knowledge of the methods or
standards employed by archive.org in creating and maintaining their web pages or with methods or
standards used to capture web pages by third party donors to archive.org.

3. On 15 June 2013, the parties submitted briefs on the admissibility additional evidence to authenticate PE 109 for ID IAW MRE 902(1 1) and MRE 901(b)(2), the
Government submitted an Attestation Certificate from Mr. Christopher Butler, Office Manager of
archive.org dated 12 June 2013 (AE 567, Enclosure 1). The attestation reads:

I swear or affirm that each of the following is true regarding the attached records to the best of
my knowledge and belief:

I. I am an employee familiar with the manner and process in which these records are created and
maintained, by virtue of my duties and responsibilities;

2



35697

2. to the best that the electronic systems involved can accurately record and reflect, such ?les
were captured at or near the time of the date re?ected in the URL assigned to each ?le by virtue of an
automated transfer of electronic data.

3. such records were captured by Internet Archive or received from third party donors in the
course of regularly conducted business activity by the Internet Archive;

4. The records are true and accurate copies of the original documents in Internet Archive?s
Wayback Machine service at web.archive.org.

The Court notes the attached record to this attestation is entitled ?Draft: The Most Wanted Leaks of
2009-sort? with the same content and URL as PE 109 for ID.

4. The Defense also submitted an attestation from Mr. Butler dated 13 June 20l3 (enclosure I0 of the
Defense brief - AE 568). The attestation reads as follows:

1. I am the Office Manager at the Internet Archive, located in San Francisco, California. I make
this declaration of my own personal knowledge.

2. The Internet Archive is a website that provides access to a digital library of Internet sites and
other cultural artifacts in digital form. Like a paper library, we provide free access to researchers,
historians, scholars, and the general public. The Internet Archive has partnered with and receives support
from various institutions, including the Library of Congress.

3. The lntemet Archive has created a service known as the Wayback Machine. The Wayback
Machine makes it possible to surf more than 240 billion pages stored on the Internet Archive?s web
archive. Visitors to the Wayback machine can search archives by URL a website address). If
archived records for a URL are available, the visitor will be presented with a list of available dates. The
visitor may select one of those dates and then begin sur?ng on an archived version of the Web. The links
on the archived ?les, when saved by the Wayback Machine, point to other archived ?les (whether HTML
pages or images). Ifa visitor clicks on a link on an archived page, the Wayback Machine will serve the
archived ?le with the closest available date to the page upon which the link appeared and was clicked.

4. The archived data made viewable and browseable by the Wayback Machine is compiled using
software programs known as crawlers, which surf the Web and automatically store copies of web ?les,
preserving these ?les as they exist at the point of time of capture.

5. The Internet Archive assigns a URL on its site to the archived ?les in the format
in [day in dd][Time code in Thus,
the Internet Archive URL be
the URL for the record of the Internet Archive home page HTML ?le archived
on January 26, 1997 at 4:58 a.m. and 28 seconds (1997/01/26 at 04:58:28). A web browser may be set
such that a printout from it will display the URL of a web page in the printout?s footer. The date assigned
by the Internet Archive applies to the HTML ?le but not to image ?les linked therein. Thus images that
appear on a page may not have been archived on the same date as the HTML ?le. Likewise, if a website
is designed with ?frames,? the date assigned by the Internet Archive applies to the frameset as a whole,
and not the individual pages within each frame.

6. Regarding archived ?les stored in and made available via the Wayback Machine, I further
declare that:

3

35698

A. to the best that the electronic systems involved can accurately record and reflect, such
?les were captured at or near the time of the date reflected in the URL assigned to each ?le by virtue of
an automated transfer of electronic data;

B. such records were captured by Internet Archive or received from third party donors in
the course of regularly conducted activity by the Internet Archive; and

C. the Internet Archive captures, stores, and receives from third party donors web data as
a regular practice.

7. The web archives for the year 2009 in the Wayback Machine at web.archive.org were largely
obtained from third-party organizations, which donated the archived data, captured by automatic
electronic systems, to the Internet Archive. I do not af?nn that these web archives were set forth by, or
from information transmitted by, people with knowledge of the infonnation recorded therein.

8. This document is the Internet Archive ?s standard affidavit, the af?davit Internet Archive
normally provides to parties seeking to use Wayback Machine records as evidence in legal proceedings,
with additional language provided in paragraphs 6-8.

9. Attached hereto as Exhibit A are true and accurate copies of printouts of the Intemet Archive?s
records of the HTML ?les for the URLs and the dates speci?ed in the footer of the printout.

10. I declare under penalty of perjury that the foregoing is true and correct.
The Court notes that Exhibit A contains a document entitled ?Draft: The Most Wanted Leaks of 2009?

that is similar to DE but not identical as it contains additions, deletions, and changes. The URL is:
l042l Most Wanted Leaks

of 2009. Thus, there are at least 3 versions of ?Draft: The Most Wanted Leaks of 2009 available on the



Internet today.

Hearsay/Relevance (the Court refers to PEs 31, 31A, and 3 for ID together as PE 3] for ID and refers

to P135 32, 32Afor purposes of Hearsay/Relevance ?ndings of factseries of exhibits are the same 2 tweets, thus hearsay/relevance ?ndings are the same for
all the exhibits in the series.

1. Defense asserts that PES are hearsay in that (I) the statement by
the webpage or tweet itself is hearsay; (2) the statement of the individual who allegedly captured the site
and relayed the information to achive.org or Google.cache is hearsay; and (3) the statement of archive.org
or Google.cache is hearsay.

2. The Government offers PEs 31, 32, and 109 for ID not for the truth of the matters asserted within the
exhibits. Rather, they offering these exhibits to show the effect that they may have had on PFC Manning.
The Government asserts that, to the extent the contents could have
in?uenced PFC Manning, the exhibits are relevant. Defense asserts the Government has presented no
evidence that PFC Manning saw or was aware of PEs 3 I 32, or 109 for ID, therefore they are not relevant
to any fact of consequence.

3. The Government theory of the case with respect to PE 109 for ID is that PFC Manning viewed the
WikiLeaks Most Wanted List directly from the WikiLeaks webpage as depicted 35699

after 5 November 2009 not that PFC Manning viewed the list as depicted in PE 109 for ID from the
archive.org website.

4. The Government has presented no forensic evidence that the tweets the
?Most Wanted List of 2009? in PE 109 for ID were downloaded by PFC Manning. The Government has
offered evidence that PFC Manning conducted searches for WikiLeaks and OpenSource.gov on lntelink;
evidence of chats between PFC Manning and Press Association/Julian Assange that discussed
OpenSource.gov; and evidence that when conducting searches on lntelink, when the searcher pulls up a
website and proceeds to search within that website, lntelink no longer captures the search data.

The Law.
1. Evidence must be relevant to be admissible. MRE 402.

2. Evidence is relevant if it has the tendency to make a fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence. MRE 401.

3. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted. MRE 801(c).

4. Hearsay evidence is inadmissible unless an exception applies or the evidence is offered for a purpose
other than to prove the truth of the matter asserted. MRE 802. This rule applies to testimony given by
witnesses at trial and to exhibits to the extent that exhibits contain statements.

5. Statements offered to prove the effects those statements may have had on a listener, or reader, are not
offered to prove the truth of the matter asserted and, therefore, may be considered for that limited non-
hearsay purpose.

6. Exhibits require authentication as a condition precedent to their admission. The requirement of
authentication is satisfied by evidence sufficient to support a ?nding that the exhibit in question is what
its proponent claims. MRE 901(a); US. v. Lubich, 72 MJ 170 (C.A.A.F. 2013).

7. Authentication is an issue of conditional relevance. MRE l04(b) and MRE 1008 govern the inquiry
under MRE 901. Thus, the Court may consider only evidence offered by the proponent that is admissible
at trial to make a preliminary determination whether the exhibit(s) are sufficiently authenticated for the
fact??nder to make a determination that they are authentic. Lubich, 901 is the same as Federal
Rule of Evicence (FRE) 901 and embraces the well-established view that authentication is a component
of relevancy.? And citing US. v. Blanchard, 48 M.J. 306, 309 (C.A.A.F. 1998) ?federal court of appeals
decisions applying these principles would be most FRE 901 advisory committee?s note ?The
requirement of showing authenticity or identity falls in the category of relevancy dependent upon
fulfillment of a condition of fact and is governed by the procedure set forth in Rule Thus, only
admissible exhibits may be considered by the Court in making its preliminary detemiination.

8. Two methods of satisfying the authentication requirement, and the methods attempted by the
Government in moving for admission of PEs 31, 31A, 31B, 32, 32A ID, and 32B are: (1) through a
witness with knowledge that the exhibit is what it is claimed to be. MRE 901(b)(1) and (2) evidence of
distinctive characteristics and the like. MRE 90





9. There are no military cases directly addressing the authentication requirements of online webpage
archives. However, there are federal and state cases that have addressed authentication of online
webpage archives.

a. Self Authenticated Business Record MRE 902(1 803(6): The Govemment has
provided no authority where a court addressing a challenge to authentication has ruled that online
webpage archives from a non-government source are self-authenticating business records. The authority
is to the contrary. In re Homestore.com., Inc. v. Securities Litigation, 340 F.Supp.2d 769 (C.D. Cal.
2004) (Printouts from a web site do not bear the indicia of reliability demanded for other self-
authenticating documents under FRE 902) .

b. Testimony by a Witness With Knowledge: Several federal courts have addressed challenges
to authentication of archived websites by a witness with knowledge under FRE 90l(b)(1). Courts
addressing the issue squarely have agreed that the admission of such webpages must be predicated either
upon the testimony of an employee of the archiving company or upon the testimony of someone having
personal knowledge of the contents of the archived webpages such that the witness can testify that the
archived copy is accurate. The only criminal case relied upon by the Govemment as authority to
authenticate archived webpages IAW FRE 901(a)(l) is U.S. v. Bansal, 663 F.3d 634 (3'd Cir. 201 1). In
Bansal, the Government called a witness to testify about how the Wayback Machine website works and
how reliable its contents are. The witness also compared the screenshots with previously authenticated
and admitted images from the website at issue and opined based on her personal knowledge that they
were authentic. The opinion did not identify who the witness was. The other two cases relied upon by the
Govemment for the proposition that attestations by a witness with knowledge may be sufficient to
authenticate archived webpages IAW FRE 901 are civil cases where confrontation is not at issue. St.
Luke ?s Cataract and Laser Institute, P.A. v. Sanderson, 2006 W.L. 1320242 (M.D. Fla. 2006) and
elewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 WL 2367740 (N.D. Ill. 2004). Other courts
addressing the issue include: U.S. v. See, e. Sam's Riverside, Inc. v. Intercon Solutions, Inc., 790
F.Supp.2d 965, 980-982 (S.D. Iowa 2011) (Holding that an archive.org employee can authenticate
archive.org webpages); US. v. Shrum, 201 1 WL 1753488 at 1-3 (E.D. Arkansas 201 1) (District court
initially admitted archive.org webpage sponsored by a law enforcement witness but reconsidered and
excluded it. Issue was whether the curative instruction to the jury was sufficient); Netscape
Communications Corp. v. Valueclick Inc., 707 F.Supp.2d 640, 644 at footnote 6 (E.D. Va 2010) (District
court admitted archive.org website because sponsoring witness had seen original and could testify that the
archive.org page was an accurate copy); and Audi AG and Volkswagen of America v. Shokan
Coachworks, Inc., 592 F.Supp.2d 246, 278 (N.D. New York 2008) ("Defendants correctly point out that
the Adams Declaration cannot authenticate the search results from because such
evidence may only be authenticated by a knowledgeable employee of the

c. The only case presented to the Court by the parties that directly addresses authentication LAW
FRE 901(a)(1) where a third party has donated an archived webpage to archive.org is a civil case, Novak
v. Tucow Inc., 2007 U.S. Dist. LEXIS 21269 (E.D.N.Y. 2007), aff?d 330 Fed. Appx. 204 (2"d Cir. 2009)
(the information at issue was only as reliable as the third-party donor made it.)

10. The Court considers issues of hearsay and whether evidence should be excluded under MRE 403 as
preliminary questions IAW MRE l04(a).

Conclusions of Law Authentication:
1. The Court will consider only admissible evidence offered by the proponent that will go before the fact-

finder in making a preliminary determination regarding authentication.
6

35701

2. PEs 31, 31A, 3 I B, 32, 32A, and 32B for ID have been properly authenticated IAW MRE 901(b)(1) via
the testimony of SA Mander. Although PE 31 and 32 for ID are retrieved from Google.cache, SA
Mander testified that he retrieved copies of the same tweets directly from twitter.com These exhibits are also properly authenticated IAW MRE 901(b)(4) distinctive
characteristics as set forth in the Court?s ?ndings of fact regarding these exhibits. PEs 31, 31A, 31B, 32,
32A, and 32B for ID are properly authenticatednot suf?ciently reliable to be a self-authenticating business record IAW MRE 902(11)
and MRE 803(6). For authentication IAW MRE 901, federal case law on the authentication issue is
persuasive. A witness sponsoring the admission of archived webpages must either have knowledge of the
archiving procedures used by the archiving entity and/or third party donor entity such that the witness can
testify that the archive actually shows true copies of the websites they purport to archive or must have
knowledge of the original webpage such that the witness can verify that the archived copy is a true copy
of the original. The Government has advised the Court that it does not intend to admit the attestation by
Mr. Butler (enclosure 1 of the Government?s brief). Accordingly, this court ?nds that the Government
has not properly authenticated not admitted.

4. The PE 31 series of exhibits provide evidence that WikiLeaks or an entity purporting to be WikiLeaks
posted a tweet on 7 May 2010, requesting a list of as many.mil email addresses as possible. The PE 31
series of exhibits is offered by the Government for non-hearsay purposes. PE 31series of exhibits is
offered as circumstantial evidence to show PFC Manning?s intent to respond to WikiLeaks queries and
his knowledge of the scope of disclosures WikiLeaks intended to make. The Government has introduced
forensic evidence from SA Al Williamson that the accused downloaded the U.S. forces-Iraq Microsoft
Outlook/Share-point Exchange Server global address list (GAL) between 1 1-27 May 2010. This evidence
is relevant to the speci?cation of Charge I (Aiding the Enemy) and speci?cation 16 of Charge II (stealing,
purloining, or knowingly converting the GAL between on or about 1 -27 May 2010).

5. The 8 January 2010 tweet in PE 32 series of exhibits states ?Have videos of US bomb
strikes on civilians we need supercomputer time The portion of
the tweet stating ?Have videos of U.S. bomb strike on civilians.? is a statement. The
Government offers the tweet (1) as a hearsay exception under MRE 803(3) (then existing state of mind) to
demonstrate WikiLeaks publicized plan to compromise military information as of 8 January 2010; (2) for
the non-hearsay purpose to show PFC Manning?s awareness of WikiLeaks? openly and publicly posted
plan to disclose classi?ed information; (3) for the non-hearsay purpose of the publication of the tweet
looking for assistance to the video as circumstantial evidence to connect the timing of the tweet
to the appearance on Mr. Jason Katz? computer on 15 December 2009 of an Afghan video with the same
hash values as the Afghan video from the CENTCOM server allegedly communicated to WikiLeaks by
PFC Manning; and (4) as a hearsay exception under MRE 803(3) to corroborate PFC Manning?s
admissions that he sent WikiLeaks an video in the intemet chats. For the reasons proferred by
the Government above PE 32 is relevant as evidence of PFC Manning?s knowledge of the scope of
WikiLeaks? intended disclosure for the speci?cation of Charge I (Aiding the Enemy), speci?cation I of
Charge 11 (Wantonly Causing to be Published) and to prove willful communication of the Gharani video
for speci?cation 1 1 of Charge IIrequest for information and is offered for the fact that the request was made not for
the truth of the matter asserted. The Government offers PE 109 for ID for a non-hearsay purpose as
circumstantial evidence that PFC Manning was aware of PE109 for ID and his intent to gather
information and send it to WikiLeaks. Although the Government has not presented evidence that the
accused actually accessed PE 109 for ID, the Government has presented evidence that PFC Manning
searched Intelink for WikiLeaks and for some of the information on PE 109 for ID. The Government also
7

35702

presented evidence that when a person does an Intelink search and navigates to another website to
continue the search, Intelink no longer captures the meta-data. The Court finds timing of the PE 109 for
ID posting in conjunction with other evidence presented by the Government is relevant circumstantial
evidence offered for a non-hearsay purpose to further the inference that PFC Manning was aware of the
information requested by WikiLeaks in PE 109 for ID. Should PE 109 for ID be properly authenticated,
it is relevant for the specifications in Charges I and II.

7. The Court has considered whether the probative value series of exhibits is
substantially outweighed by the danger of unfair prejudice under the criteria in MRE 403 and finds it is
not. The Court as fact-finder will consider the evidence for the proper admissible purposes.

RULING: The Government motion to admit PEs 31, 31A, 31B, 32, 32A, and 32B for ID is GRANTED.
The Government motion to admit PE 109 for ID is DENIED.

//gy

DENISE R. LIND
COL, JA
ChiefJudge, 1? Judicial Circuit

So ORDERED this 28?? day of June 2013.





35703

DEPARTMENT OF THE ARMY
U.S. ARMY MILITARY DISTRICT OF WASHINGTON
210 A STREET
FORT LESLEY J. MCNAIR. DC 20319-5013

i
xnewnou or

June 28, 2013
Criminal Law Division, Office of the Staff Judge Advocate

Mr. Christopher Butler
lntemet Archive

Re: United States v. Private First Class (PFC) Bradley Manning
Dear Mr. Butler or an alternate Records Custodian:

This office respectfully requests prompt compliance with the enclosed Subpoena in the above-
referenced U.S. Army court-martial. The below documents are being requested for you to bring with you
to Fort Meade. Maryland.

1. All documents related to the following URL:
10506 I


2. All documents related to the following URL:

of_2009?.

3. All documents related to whether the above listed URLs were collected or archived by
web.archive.org.

4. All documents related to whether the above listed URLs were obtained or donated from
third-party organizations, and if so. which organization donated the URLs.

This criminal trial is currently in progress. I request that you produce the above listed records
when you arrive to the courthouse on July 1, 2013. These records will be used in trial. You may comply

with this order by signing the enclosed sub ocna and retumin it to the servicing agent. Please contact
our travel section as soon as possible at
. This office will fund all reasonable costs directly

associated with your travel. I greatly appreciate your assistance and cooperation.

Sincerely,
Ashden Fein
Major, U.S. Army
Trial Counsel
Enclosure APPELLA1 l" Ix? 3? 5?

3;
PAGE


35704

SUBPOENA

The President of the United States. to Mr. Christopher Butler or an alternate Records Custodian

(Name and Title of Person being Subpoenaed)

You are hereby summoned and required to appear on the day of July 2013 . at
o'clock A .M.. at Fort Meade, Maryland . cueruie
(Place of Proceeding) (Name and Title of Deposition Officer)
(3 General court-martial of the United States) (a court of inquiry),
by Court-Martial Convcning Order Number I dated ll February

(identi?cation of Convening Order or Convening Authority)
20l2 to as a witness in the matter of United States v. Private First Class (PFC) Bradley Manning
Of
the documents referenced in the enclosed cover letter
(Speci?c identi?cation of Documents or Other vidence)
Failure to appear and testify is punishable by a ?ne of not more than $500 or imprisonment for a period not more than

(and bring with you

six months, or both. (10 U.S.C. 5 847]. Failure to appear may also result in your being taken into custody and brought

before the court~martlal US PFC Manning under a Warrant of Attachment (DD Form 454)

Manual for Courts-Martial R.C.M.

Bring this subpoena with you and do not depart from the proceeding withou per permission.

subscribed at Fort Meade, Maryland this 28th day 0 June I 20l3 .

(5 R. C. M. ?7o3

The witness is requested to sign one copy of this subpoena and to return the signed copy to the person serving the
subpoena.

I hereby accept service of the above subpoena.

Signature of Witness
NOTE If the witness does not sign, complete the following:

Personally appeared before me, the undersigned authority, Tabi I: ha . i

28 June

who. being first duly sworn according to law. deposes and says that personally delivered to hr 1 ophe Bu 1 in person a duplicate of this subpoena-



Grade Signature

Subscribed and sworn to before me at . this day of

Grade

Investigative Operations Analyst Tabitha L. Stires

Official SMIUS Sig-pafgre

DD FORM 453, MAY 2000 PREVIOUS EDITION IS OBSOLETE.

Adobe Professional 1.0

35705

Ford, Arthur Jr CW2 USARMY (US)

From: Hanni Fakhoury
Sent: Friday, June 28, 2013 7:46 PM
To: Ford. Arthur Jr CW2 USARMY (US)
Cc? Nate Cardozo; Kurt Opsahl
6.28.13 Subpoena to Internet Archive

Chief warrant Officer Ford,

The Electronic Frontier Foundation represents the Internet Archive with respect to the June
28, 2013 subpoena it received, requesting records and testimony at Fort Meade on Monday July
1, 2013 at 7:00 a.m.

As I explained over the phone, the Archive intends to comply with the subpoena but cannot do
so in the specified time frame. Because the documents cannot be prepared by the requested
time, the Archive needs additional time to comply.

Specifically, the Archive requests a delay until the week of July 8 to produce the records
and appear at Fort Meade.

Feel free to email or call the number below at your convenience if there are any other
questions I can answer for you.

Thanks,

Hanni M. Fakhoury

Staff Attorney
Electronic Frontier Foundation



On Twitter @hannifakhoury
EFF blog:

Help EFF Defend Freedom in the Digital world

.. .- 5"
-

1 PAGE
PAGE or

35706

UNITED STATES OF AMERICA

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

RELEVANCE AND NON-HEARSAY
PURPOSE FOR FACTS TO
BE JUDICIALLY NOTICED
28 June 2013

The United States provides the following statement to the defense and Court in support of
its request forjudicial notice of certain adjudicative facts:
Julian Assange was located in Iceland in February of 2010 and working on the Icelandic
Modern Media Initiative. See AE 472.
The Government has presented evidence that PFC Manning searched on Intelink for
"Iceland" and "wikileaks." The defense stipulated to this fact during the testimony of Mr. Chad
Madaras. The Government presented evidence that PFC Manning searched the Open Source
Center for "Iceland" and "wikileaks" on 20 February 2010. The Government presented evidence
that PFC Manning and the "pressassociation" account - associated with Julian Assange discussed topics related to WikiLeaks, the Icelandic Modem Media Initiative (IMMI), and
Iceland generally in the March 2010 timeframe. This fact is relevant as it provides context to the
nature of the chats between PFC Manning and "pressassociation." This fact is also relevant to
PFC Manning's knowledge and relationship to WikiLeaks and Assange, and whether PFC
Manning acted "wantonly" and "caused to be published" intelligence information on the internet,
two elements of Specification I of Charge II.
That LTC Lee Packnett was quoted in a New York Times article, dated 18 March 2010. In
this instance, judicial notice is conditional upon relevance and a non-hearsay or hearsay
exception usage. See AE 472.
The Government presented evidence that PFC Manning and Julian Assange discussed
LTC Packnett being quoted in a New York Times article in the March 2010 timeframe. This fact
is relevant as it provides context to the nature of the chats between PFC Manning and
"pressassociation." The date of the New York Times article is not hearsay as it is not a
statement. The fact that the article exists and that LTC Packnett is quoted is not hearsay as it is
not a statement. This adjudicative fact is relevant to PFC Manning's knowledge and relationship
with WikiLeaks and Assange, facts that tend to show that PFC Manning acted "wantonly" and
"caused to be published" intelligence information on the internet, two elements of Specification
1 ofCharge II.
That a New Yorker profile of Julian Assange, titled "No Secrets: Julian Assange's Mission
for Total Transparency" exists and was dated 7 June 2010. In this instance, judicial notice
is conditional upon relevance and a non-hearsay or hearsay exception usage. See AE 472.

APPELLATE EXHIBIT ^^$(2.
PAGE REFERENCED:
PAGE OF PAGES

35707

The Government presented evidence thatPFC Manning and Mr. Adrian Lamo discussed
aNewYorker profile ofJulian Assange in late May 2010. The fact thatPFC Manning knew
about the NewYorker article prior to the dateofpublication is relevant to show the extent of
PFC Manning'sknowledge and relationship withWikiLeaks and Assange, facts that are relevant
to whether PFC Manning "caused to be published" intelligence information on the internet, an
element ofSpecifrcationlof Charge II. The date ofthe NewYorker profrleofJulian Assange
^7.1une2010^isnothearsayasitisnotastatement.

'Ti/'Zfke^
)DEAN MORROW
CPT, JA
Assistant Trial Counsel

I certify that I served or caused to be served a true copy of the above on defense counsel,
via electronic mail, on 28 June 2013.

JODEAN MORROW
:PT, JA
Assistant Trial Counsel

35708

UNITED STATES OF AMERICA

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

RELEVANCE AND NON-HEARSAY
PURPOSE FOR FACTS TO
BE JUDICIALLY NOTICED
28 June 2013

The United States provides the following statement to the defense and Court in support of
its request forjudicial notice of certain adjudicative facts:
Julian Assange was located in Iceland in February of 2010 and working on the Icelandic
Modern Media Initiative. See AE 472.
[ihe Government has presented evidence that PFC Manning searched on Intelink for
"Iceland" and "wikileaksj" The defense stipulated to this fact during the testirnony of Mr. Chad
Madaras. ^he Government presented evidence that PFC Manning searched the Open Source
Center for "Iceland" and "wikileaks" on 20 February 20IC^. [The Government presented evidence
that PFC Manning and the "pressassociation" account - associated with Julian Assange discussed topics related to WikiLeaks, the Icelandic Modem Media Initiative (IMMI), and
Iceland generally in the March 2010 timeframe] This fact is relevant as it provides context to the
nature of the chats between PFC Manning and "pressassociation." This fact is also relevant to
PFC Manning's knowledge and relationship to WikiLeaks and Assange, and whether PFC
Manning acted "wantonly" and "caused to be published" intelligence information on the internet,
two elements of Specification 1 of Charge I I .

Comment [ A l ] : PE 81 at lines 78, 185,324, 327,
328, 341. The United States can provide additional
line references if needed.
-•(Comment [A2]; Testimony of SA Shaver

Comment [A3]: PE 123 at I (21:09:27), 3
(07:20:54), 4 (06:05:22), 5 (06:16:34), 8 (06:04:02),
9(21:10:31).

That LTC Lee Packnett was quoted in a New York Times article, dated 18 March 2010. In
this instance, judicial notice is conditional upon relevance and a non-hearsay or hearsay
exception usage. See AE 472.
[rhe Government presented evidence that PFC Manning and Julian Assange discussed
LTC Packnett being quoted in a New York Times article in the March 2010 timefram^. This fact
is relevant as it provides context to the nature of the chats between PFC Manning and
"pressassociation." The date of the New York Times article is not hearsay as it is not a
statement. The fact that the article exists and that LTC Packnett is quoted is not hearsay as it is
not a statement. This adjudicative fact is relevant to PFC Manning's knowledge and relationship
with WikiLeaks and Assange, facts that tend to show that PFC Manning acted "wantonly" and
"caused to be published" intelligence information on the internet, two elements of Specification
1 ofCharge II.
That a New Yorker profile of Julian Assange, titled "No Secrets: Julian Assange's Mission
for Total Transparency" exists and was dated 7 June 2010. In this instance, judicial notice
is conditional upon relevance and a non-hearsay or hearsay exception usage. See AE 472.

APPELLATE EXHIBil
PAGE REFERENCED:
PAGE
OF
PAGES

'

-{ Comment [A4]: PE 123 at 12 (08:42:06)

35709

^he Government presented evidence that PFC Manning and Mr.AdrianLat^odisct^ssed
aNewYorker profile of Julian Assange in late May 2010^. The fact that PFC Manningknew
about the NewYorker article prior to the date of publication is relevant to show the extent of
PFC Manning'sknowledge and relationship withWikiLeaks and Assange, facts that are relevant
to whether PFC Manning "caused to be published" intelligence information on the internet, an
element ofSpeci^cationlof Charge IL The date of the NewYorker profile ofJulian Assange
(7June20I0)isnothearsayasitisnotastatement.

' • P ' ^ _/W)DEAN MORROW
:PT, JA
Assistant Trial Counsel

I certify that I served or caused to be served a true copy of the above on defense counsel,
via electronic mail, on 28 June 2013.

y^JL^^
AA*4/I^OW
JODEAN MORROW
Q T T , JA
Assistant Trial Counsel

Comment [A5]: PE 30 at I9(10:28::21 AM).
Testimony of SA Shaver and Adrian Lamo (chats
took place in late May 2010).

35710

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

28 June 2013

I. Reference Materials
A. The Court took judicial notice that the existence and the content of following reference
materials are adjudicative facts:
1. Army Regulation (AR) 25-2, paras 1-4, 1-5, 3-3, 4-5, 4-16, 4-17, and Figure Bl.See
Appellate Exhibit (AE) 288; AE 248.
2. AR 380-5, paras 1-20, 1-21, 1-22 and Chapters 2, 4 (Section 1), 5 (Sections I and V),
and paras 6-1, 6-2, 6-3, 7-4, 8-3, and 8-12. Id.
3. AR 530-1, paras 1-5, 1-6, 1-7, and 2-1. Id.
4. 18 U.S.C. §793(e). M
5. 18 U.S.C. § 1030(a). Id.
6. 18 U.S.C. §641. Id.
7. Executive Order (EO) 13526. Id.
8. Authorization for the Use ofMilitary Force. Id.
9. July 2011 Information Paper by HQDA DCS, G-2, Initiatives Group (DIG). See AE
288; AE 233, Attachment A.
10. Commander's Handbook Distributed Common Ground System - Army DCGS-A,
March 30, 2009. See AE 288; AE 233, Attachment B.
11. EO 12958. See AE 472.
12. EO 12972. Id.
13. EO 13142. Id.
14. EO 13292. Id.
APPELLATE E X H I B I T J X t
PAGE REFERENCED:
PAGE
OF
PAGES

35711

15 Public L a w l l l 258.AE 481.
16 AR251,parasl l,l-7(a)and(b),and61(d)^(t)^^^AE582
17. AR25 2de^nitionof^^Inf:^rmationSystem''..^^.
18. Department ofDetense Regulation 5400.11 R, Appendixland the del^nition of
^^Personallntormation''.

B. The Couri will takejudicial notice ofthe existence and the content ofthe tollowing
reference materials, conditional on the relevance ofthese materials:
1 ArmyFieldManual2-0^^Intelligence''.^^^AE472.
2. Army Field Manual2-19.4^^BrigadeCombatTeam Intelligence Operations''.
3. Army Field Manual2 22.2 ^^Counterintelligence".
4. Army Field Manual2 22.3 ^^Human Intelligence Collector Operations".
5. Army Soldier'sManualandTrainer'sGuide tor Intelligence Analysis MOS 35F,Skill
Level 1^2^3^4^^
6. Couri will take judicial notice ofthe bindings in Section2ofPLlll 258 to
the degree they are relevant. Suchjudicial notice would be the adjudicative tact that Congress
made the tindings (that Congress believed over-classittcationwasapotential issue and passed
thislegislation which contains not just bindings but specitic statutory initiatives to address
that issue), not that the bindings by Congress are adjudicative fact. Thus, subject toa
demonstration ofrelevance, the Court will take judicial notice ofthe existence ofPLlll-258,to
include the Congressional tinding in Section 2,the date ofintroductionofH.R. 255 and the date
the law was enacted. The Court will not takejudicial notice ofthe truth ofthe matter asserted in
PL 111 258 as adjudicative tacts. AE 481

IL Statements, Ariicles, and Print Material
A. The Couritookjudicial notice ofthe tollowing tacts associated with statements, ariicles,
and print material:
1. That the 13 October 2010classitication assessment by RADM Donegan exists and
that RADM Donegan gave this assessment.Thisintormation is admissible as an admission ofa
pariy opponent under MRE 801(d)(2)(D), given he was acting in his ofticial capacity as Direct of
Operations, CENTCOM,when he made the classitication assessment and that the assessment
states facts inconsistent with the Stipulation ofExpectedTestimony of C^5John Larue atPE
117^^^ AE 582

35712

2. The audio transcript for PE15..^^.Thepariies stipulate that Enclosure2toAE 574 is
an accurate transcript ofthe audio inPE 15.

B. The Couritookjudicial notice ofthe tollowing tacts associated with statements, ariicles,
and print material tor pre sentencing only:
1. That the Advanced Ace, Advanced Analytical, Capability Joint Urgent Operation
Need Statement, MGMichaelTFlynr^,DeputyChiefofStaffIntelligence2July2010exists.
^^^AE288;AE233,AttachmentC
2. That the letter regarding global knowledge management dated 19 July 2010ti^om three
membersofCongress to the Chairman and ranking members ofthe House Appropriations
Committee exists. i^^^AE288;AE233,AttachmentD.
3. That the letter to the Chairman ofthe House Appropriations Committee h^om COL
Peter A. Newell, Director, Rapid Equipping Force, dated 28 July 2010, exists. ^^^AE288;AE
233, Attachment E.
4. That the letter to COL Newell t^om members ofCongressGabrielleGiftords and
Adam Smith, dated25August2011,exists. ^^^AE288;AE 233,AttachmentF.
5. That the letter trom Adam Smith, Congress member, to General Dempsey,dated 23
May201L^^i^ts^^^AE288;AE233,AttachmentG
6. ThataDeparimentofDetense news Release entitled ^^Statement by Pentagon Press
SecretaryGeoffMorrell and Special Envoytor Closure of Guantanamo DetentionFacility
Ambassador Daniel Fried",dated24April 2011,exists and that Mr. Morrell made these
statements. The statements are admissible under MRE 801(d)(2)(D). ^^^AE 356;AE316.
7. Thata^^ite House release entitled ^^Remarks bythe President AtterBipariisan
Leadership Meeting",dated 27 July 2010, exists and that President Obama made these
statements. The statements are admissible under MRE 801(d)(2)(D).
8. Thataletterto Secretary Roberi Gates ^om Carl Levin, dated 28 July 2010, exists.
The^tatement^ are admi^^iblc under MRE 801(d)(2)(D)and^^^^RE^^O^(^)(A)^^
9. Thataletter to Carl Levin ^omRoberi Gates, datedl6August 2010, exists. The
statementsareadmissible under MRE 801(d)(2)(D)andMRE 803(8)(A)
10. Thatanews release entitled ^^DOD News Brieting with Secretary Gates and Adm.
Mullen trom the Pentagon",dated 30 November 2010, exists and that Secretary Gates made
these statements. Admissible tor non hearsay purpose as public statements made by government
ottrcials that provide circumstantial evidence ofminimized damage cause by the alleged
wikileaks disclosures.

35713

11. That DeparimentofStatepublished remarks entitled ^^Remarks with Kazakh Foreign
Minister Saudabayevatter their Meeting",datedlDecember 2010, exist and that Secretary
Clinton made these statements. Admissible tor non-hearsay purpose as public statements made
by government ofticials that provide circumstantial evidence ofminimized damage cause bythe
alleged wikileaks disclosures.
12. William Leonard, Director oflntormation Security Oversight Oftrce ofthe
National Archive, statements, dated 22 March 2007 given at the 2007 House Committee on
Homeland Security Hearings.

C. The Couri will take judicial notice ofthe belowlisted tacts associated with statements,
ariicles, and print material, conditional on the tollowing:
1. ThatLTC Lee Packnett was quoted inaNew^ork Times ariicle,datedl8March
2010.In this instance, judicial notice is conditional upon relevance andanon-hearsay or hearsay
exception usage. ^^^AE472.
2. ThataNew^orkerprofileofJulianAssange,titled^^No Secrets: Julian Assange's
Mission torTotalTransparency" exists and was dated7June 2010. In this instance, judicial
notice is conditional upon relevance andanonhearsay or hearsay exception usage.
3. DavidFinkel'sbook ^^TheGood Soldiers" exists. AE356.TheCouriwill take
judicial notice the dateofpublication, and the provided excerpts. AE356. Comparisons
between Mr.Finkel^s book and conclusions to be drawn trom the comparisons are properly
presented to the fact tinder bythe pariies not bythe Couri. The rec^uest to take judicial notice
that the book quotes the video verbatim at several key points is denied. AE356. Linkages,
argument, and legal conclusions regarding the contents ofMr. Finkel^s book and the audio in the
video are properlypresented to the tact tinder bythe pariies. ^^^AE288.

D. The Couri will take judicial notice ofthe belowlisted tacts associated with statements,
ariicles, and print material,tor presentencing only,conditional on the tollowing:
1. ThataUPINewsTrack news story entitled ^^Clinton on Leaked Docunents: So
^^at7",dated4December 2010, exists. In this instance, judicial notice is conditional ona
relaxation ofthe rules. ^^^AE356;AE316.
2. ThataNew^ork Times ne^s story entitled ^^From^ikiLemons, Clinton Tries to
make Lemonade",dated4December 2010, exists. In this instance, judicial notice is conditional
onarelaxation of the rules. ^^^AE356;AE316.
3. ThataCNN news story entitled ^^Clinton: WikiLeaks Cables Show Diplomacy at
^ork",dated4December 201,exists. In this instance, judicial notice is conditional ona
relaxation ofthe rules.

35714

4. That an interview described on MSNBC entitled ^^Biden on Stari,^ikiLeaks" exists.
In this instance, judicial notice is conditional on the detense providing the Couri with the date of
this interview.
5. The 22 March2007 testimony ofMr. Leonard isadmissible under MRE 803(8)(A)if
relevant. AE481. The key asseriion cited bythe Detense, that trained government classitiers
only made ^^clearly" correct classitication decisions 64 percent ofthe time was based on an
otticial audit. (^^In an audit of agency classitication activity conducted by my ottice
approximately one year ago,we discovered that even trained classitiers,with ready access to the
latest classitication and declassitication guides, and trained in their use, got itrightonly 64
percent ofthe time in making determinations as to the appropriateness of classitrcation.").

IIL Historical Facts
A. The Couritookjudicial notice ofthe tollowing historical tacts:
1. WikiLeaks and various news organizations began publishing purporiedDepariment of
State diplomatic cables over the weekend of27 28 November 2010. ^^^AE472.
2. Onl9January 2010, the Depariment ofState listed ^^aL^a'ida in the Arabian
Peninsula" (A^AP)asatoreign terrorist organization. Since that date,A^AP has been an
enemy ofthe United States. ^^^AE472.
3. Usama bin Laden wasamember of AL^aeda(A^) and an enemy ofthe United
States^^^AE472.
4. Adam GadahnisamemberofA^and an enemy ofthe United States. i^^^AE472.
5. David Finkel'sbook^^The Good Soldiers" was published priorto the alleged leaks in
this case. ^^^AE288.
6. There has been consistent and extensive media coverage of this case. ^^^AE283.
7. ^ikiLeaks releasedavideo titled ^^Collateral Murder" on5April 2010. ^^^AE 582.
8. WikiLeaks released more than390,000 records trom the Combined Intormation Data
NetworkExchange(CIDNE)Ira^ database on 22 October 2010.^^.
9. wikileaks released more than 75,000 records trom the CIDNE Atghanistan database
on25 July2010..^^
10. WikiLeaks released more than 700 detainee assessments produced by JointTask
ForceGuantanamo(JTFGTMO)on25April2011.^^

35715

11. WikiLeaks releasedamemorandum produced bythe Army Counterintelligence
Center titled ^^^ikiLeaks.org An Online Reference to Foreign Intelligence Services,
Insurgents,orTerroristGroups7"on 15 March2010.^^.
12. The monthly base salary tor Servicemembers at the rank ofSpecialist, E-4,was
^l,502 70in2003,^L^^^^^^^^^^^^^L^l^^^^^^^^^^^L^^^90in2006,^l,69950i
^I,75890in2008,^l,82760in2009,and^l,88970in2010^^
13. The yearly base salary tor government employees at the grade o f l 2 o n the General
Schedule(GS) scalewas^51,508in2003;^52,899in2004; ^54,221 in2005,^55,360in2006,
^56,301 in2007,^57,709in2008, ^59,383 in2009,and^60,274in2010.^^
14. Thanksgiving of2009 occurred on 26 November 2009..^^.
15. The term ^^.is" is the top level internet domain oflceland.
16. JohannaSigurdardottir was the Prime Minister oflceland trom February 2009 May
2013.^^
17. Ossur Skarphedinsson was the Icelandic Minister tor Foreign Atfairst^om February
2009 May2013.^^
18. AlberiJonsson was the Icelandic Ambassador to the United States 2006 2009..^^.
19. Birgitta Jonsdottir has heenamember ofthe Icelandic parliament since 2009.
20. On or about 25 November 2009,^ikiLeaks published what it claimed to be text and
pager messages sent onllSeptember 2001. Judicial notice does not extend to the content ofthe
messages or that the messages are actually fiomllSeptember 2001.^^.
21. On 25 July 2007,Reuters madeaFOIA request to DoD tor video and audio
recordings relating to the deaths ofMr. Namir Noor-EIdeen and Mr. Saeed Chmagh, Reuters
journalists. CENTCOM responded to the Reuters request on24 April 2009.^^.

B. The Couri took judicial notice ofthe tollowing historical tacts tor the presentencing
phase ofproceedings:
1. Damage Assessments exist. ^^^AE472.
2. The OtticeofNational Counterintelligence Executive, the IntormationReviewTask
Force, and the DeparimentofStates created or compiled their respective damage assessments on
the noted dates.
3. The Depariment ofState damage assessment is the most current version and isadratt.

35716

C. The Couri will take judicial notice ofthe tollowing historical facts, conditional on the
relevanceofthese materials:
1. Julian Assange was located in Iceland inFebruaryof2010and working on the
Icelandic Modem Media Initiative. ^^^AE472.
2. ^^Inspire"isamagazine.

35717

UNITED STATESOF AMERICA
Y^

Combined Judicial Notice
Manning, Bradley E.
PEC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
Fort Myer, Virginia 22211

lJuly2013

I . MERITS
A. The Court took judicial notice of the following adjudicative facts for the merits:
1. Army Regulation (AR) 25-2, paras 1-4, 1-5, 3-3, 4-5, 4-16, 4-17, and Figure B 1. See
Appellate Exhibit (AE) 288; AE 248.
2. AR 380-5, paras 1-20, 1-21, 1-22 and Chapters 2, 4 (Section 1), 5 (Sections I and V),
and paras 6-1, 6-2, 6-3, 7-4, 8-3, and 8-12. Id.
3. AR 530-1, paras 1-5, 1-6, 1-7, and 2-1. Id.
4. 18 U.S.C. §793(e). Id.
5. 18 U.S.C. §1030(a). M
6. 18 U.S.C. §641. M
7. Executive Order (EO) 13526. M
8. Authorization for the Use of Military Force. Id.
9. July 2011 Information Paper by HQDA DCS, G-2, Initiatives Group (DIG). See AE
288; AE 233, Attachment A.
10. Commander's Handbook Distributed Common Ground System - Army DCGS-A,
March 30, 2009. See AE 288; AE 233, Attachment B.
11. EO 12958. See AE 472.
12. EO 12972. Id.
13. EO 13142. Id.
14. EO 13292. Id.
15. AR 25-1, paras 1-1, l-7(a) and (b), and 6-1 (d)-(t). See AE 582.
APPELLATE
EXiUBYlSj^
PAGE REFERENCED:
PAGE
OF
PAGES

35718

16. AR25-2detinitionof^^Intormation System."
17. Depariment ofDefense Regulation 5400.11 R, Appendixland the detinition of
^^Personal Information."
18. That thel3October2010classitication assessment by RADM Donegan exists and
that RADM Donegan gave this assessmenLThis inlormation is admissible as an admission ofa
pariy opponent under MRE 801(d)(2)(D), given he was acting in his ofticial capacity as Direct of
Operations, CENTCOM,when he made the classitication assessment and that the assessment
states t^cts inconsistent with the Stipulation ofExpectedTestimony of C^5 John Larue at PE
117^^^AE582
The pariies stipulate that Enclosure2toAE 574
19. The audio transcript for PE 15.
is an accurate transcript ofthe audio in PE15.
20. David Finkel'sbook^^The Good Soldiers" was published prior to the alleged leaks in
this case. ^^^AE 288
21. David Finkel'sbook^^The Good Soldiers" exists. AE 356. The Court will take
judicial notice the dateofpublication, and the provided excerpts. AE356. Comparisons
between Mr. Finkefs book and conclusions to be drawn trom the comparisons are properly
presented to the fact tinder by the pariies not by the Court. The request to take judicial notice
that the book quotes the video verbatim at several key points is denied. AE356. Linkages,
argument, and legal conclusions regarding the contents ofMr. Finkefs book and the audio in the
video are properly presented to the tact tinder by the parties. ^^^AE288.
22. WikiLeaks and various news organizations began publishing purported Department
ofState diplomatic cables over the weekend of27-28 November 2010. ^^^AE472.
23.Onl9January2010, the Department ofState listed ^^alQa'ida in the Arabian
Peninsula" (AQAP)asatoreign terrorist organization. Since that date,AQAP has been an
enemy ofthe United States. ^^^AE472.
24. Usama bin Laden wasamember of Al-Qaeda(AQ) and an enemy of the United
States^^^AE472
25. Adam GadahnisamemberofAQand an enemy ofthe United States. i^^^AE472.
26. There has been consistent and extensive media coverageofthis case. ^^^AE283.
27B^ikiLeaks releasedavideo titled ^^CollateralMurder"on5April 2010^^^ AE 582.
28.WikiLeaks released more than390,000 records trom the Combined Inlormation Data
Network Exchange(CIDNE)Ira^ database on 22 October 2010.

35719

29. wikileaks released more than 75,000 records trom the CIDNE Atghanistan database
on25 July 2010^^
30. WikiLeaks released more than 700 detainee assessments produced by JointTask
ForceGuantanamo(JTFGTMO)on25 April 2011 .^^
31. WikiLeaks releasedamemorandum produced by the Army Counterintelligence
Centertitled^^^ikiLeaks.org^An Online Reference to Foreign Intelligence Services,
Insurgents, orTerroristGroups7"onl5March 2010.
32. The monthly base salary for Servicemembers at the rank ofSpecialist,E-4,was
^I,502 70in2003,^l,558 20in2004,^l,612 80in2005,^l,662 90in2006,^l,69950in2007,
^I,758 90in2008,^l,827 60in2009,and^l,88970in2010 7^
33. The yearly base salary tor government employees at the grade o f l 2 o n the General
Schedule(GS)scalewas^51,508 in2003;^52,899in2004;^54,221 in2005,^55,360in2006,
^56,301 in2007,^57,709 in2008, ^59,383 in2009,and^60,274in2010 7^
34. Thanksgiving of2009 occurred on 26 November 2009.
35. The term ^^.is" is the top level internet domain oflceland. 7^
36. Johanna Sigurdardottir was the Prime Minister oflceland tromFebruary2009-May
2013 7^
37. Ossur Skarphedinsson was the Icelandic Minister tor Foreign Aftairs trom February
2009-May2013.7^
38. Alberi Jonsson was the Icelandic Ambassador to the United States 2006-2009. 7^.
39. BirgittaJonsdottir has heenamember ofthe Icelandic parliament since 2009. 7^.
40.On or about 25 November 2009,^ikiLeaks published what it claimed to be text and
pager messages sent onllSeptember 2001. Judicial notice does not extend to the content ofthe
messages or that the messages are actually t^omll September 2001. 7^.
41.On 25 July 2007,Reuters madeaFOIA request to DoD tor video and audio
recordings relating to the deaths ofMr.Namir NoorEldeen and Mr. Saeed Chmagh, Reuters
journalists. CENTCOM responded to the Reuters request on24 April 2009.

B. The Couri will takejudicial notice on the merits, conditional on the tollowing:
1. ThatLTC Lee Packnett was quoted inaNew^ork Times ariicle,datedl8March
2010. In this instance,judicial notice is conditional upon relevance andanonhearsay or hearsay
exception usage. ^^^AE472.

35720

2. ThataNew^orker protile of Julian Assange, titled ^^No Secrets: Julian Assange's
Mission torTotalTransparency"exists and was dated7June 2010. In this instance, judicial
notice is conditional upon relevance andanon-hearsay or hearsay exception usage. 7^.
3. Julian Assange was located in Iceland in February of2010and working on the
Icelandic Modern Media Initiative. ^^^AE472. In this instance, judicial notice is conditional
upon relevance.
4. Army Field Manual2-0 ^^Intelligence." ^^^AE472. In this instance,judicial notice
is conditional upon relevance.
5. Army Field Manual2 19.4^^BrigadeCombatTeam Intelligence Operations." 7^ In
this instance,judicial notice is conditional upon relevance.
6. Army Field Manual2 22.2 ^^Counterintelligence." 7^. In this instance, judicial notice
is conditional upon relevance.
7. Army Field Manual2 22.3 ^^Human Intelligence Collector Operations."
instance,judicial notice is conditional upon relevance

In this

8. Army Soldier'sManualandTrainer'sGuide for Intelligence Analysis MOS 35F,
Skill Level 1^2^3^4. 7^. In this instance,judicial notice is conditional upon relevance.

H. PRE SENTENCING
A. For presentencing proceedings, the Couri took judicial notice ofthe tollowing:
1

Public L a w l l l 258.

2. That the Advanced Ace, Advanced Analytical, Capability Joint Urgent Operation
Need Statement, MGMichaelTFlynn, Deputy Chief ofStaffIntelligence2July2010exists.
^^^AE288;AE233,AttachmentC
3. That the letter regarding global knowledge management datedl9July2010trom
three members ofCongress to the Chairman and ranking members ofthe House Appropriations
Committee exists. ^^^AE288;AE233,AttachmentD.
4. That the letter to the Chairman ofthe House Appropriations Committee trom COL
Peter A.Newell,Director, Rapid E^uippingForce, dated 28 July 2010, exists. i^^^AE288;AE
233, Attachment E.
5. That the letter to COL Newell trom members ofCongress GabrielleGiftords and
Adam Smith, dated25August2011,exists. ^^^AE 288; AE 233, AttachmentF.

35721

6. That the letter from Adam Smith, Congress member, to General Dempsey, dated 23
May 2011,exists^^^AE 288; AE 233, AttachmentG
7. ThataDeparimentofDetensenev^s Release entitled ^^Statement by Pentagon Press
SecretaryGeoffMorrell and Special Envoy tor Closure of Guantanamo DetentionFacility
Ambassador Daniel Fried",dated24 April 2011,exists and that Mr.Morrell made these
statements. The statements are admissible under MRE 801(d)(2)(D). ^^^AE356;AE316.
8. Thata^hite House release entitled ^^Remarks by the President Alter Bipariisan
Leadership Meeting",dated 27 July2010, exists and that President Obama made these
statements. The statements are admissible under MRE 801(d)(2)(D). 7^.
9. Thataletter to Secretary Roberi Gates from Carl Levin, dated 28 July2010, exists.
10. Thataletter to Carl Levin trom Roberi Gates, datedl6August 2010, exists. The
statementsare admissible under MRE 801(d)(2)(D)and MRE 803(8)(A)
11. Thatanews release entitled ^^DOD News Brieting with Secretary Gates and Adm.
Mullen trom the Pentagon",dated 30 November 2010, exists and that Secretary Gates made
these statements. Admissible tor non hearsay purpose as public statements made by government
ofticials that provide circumstantial evidenceofminimized damage cause by the alleged
wikileaks disclosures.
12. That Department ofState-published remarks entitled ^^Remarks with I^azakhForeign
Minister Saudabayevatter their Meeting",datedlDecember 2010, exist and that Secretary
Clinton made these statements. Admissible for non hearsay purpose as public statements made
by government officials that provide circumstantial evidenceofminimized damage cause by the
alleged wikileaks disclosures. 7^.
13. William Leonard, Director oflntormation Security Oversight Otfice ofthe National
Archive, statements, dated 22 March 2007 given at the 2007 House Committee on Homeland
Security Hearings.
14. Damage Assessments exist. ^^^AE472.
15. The OfticeofNational Counterintelligence Executive, the Information ReviewTask
Force, and the DeparimentofStates created or compiled their respective damage assessments on
the noted dates. 7^
16. The Depariment ofState damage assessment is the most current version and isadratt.
7^

B. For pre-sentencing proceedings, the Court will takejudicial notice, conditional on the
tollowing:

35722

1. Court will take judicial notice of the tindings in Section2ofPLlll 258 to the
degree they are relevant. Suchjudicial notice would be the adjudicative tact that Congress made
the tindings(that Congress believed over-classiticationwasapotential issue and passed this
legislation^which contains notjust tindings but specitic statutory initiatives to address that
issue), not that the tindings by Congress are adjudicative t^ct. Thus, subject toademonstration
of relevance, the Court will take judicial notice of the existence o f P L l l l 258,to include the
Congressional tinding in Section 2, the date ofintroductionofH.R. 255 and the date the law was
enacted. The Court will not take judicial noticeofthe truth of the matter asserted i n P L l l l 258
as adjudicative facts. AE481.
2. The 22 March 2007 testimony ofMr. Leonard is admissible under MRE 803(8)(A), if
relevant. 7^. The key assertion cited by the Detense, that trained government classitiers only
made ^^clearly" correct classitication decisions 64 percent ofthe time was based on an ofticial
audit. (^^In an audit ofagency classitication activity conducted by my otfice approximately one
year ago,we discovered that even trained classitiers,with ready access to the latest classitication
and declassitication guides, and trained in their use, got it right only 64 percent ofthe time in
making determinations as to the appropriateness of classitication.").
3. ThataUPINe^sTrack news story entitled ^^Clinton on Leaked Documents: So
^hat7",dated4December 2010, exists. In this instance, judicial notice is conditional ona
relaxation ofthe rules. i^^^AE 356;AE316.
4. ThataNew^orkTimes news story entitled ^^From^ikiLemons,Clinton Tries to
make Lemonade",dated4December 2010, exists. In this instance, judicial notice is conditional
onarelaxation ofthe rules. 7^
5. ThataCNN news story entitled ^^Clintom^ikiLeaks Cables Show Diplomacy at
^ork",dated4December 201,exists. In this instance, judicial notice is conditional ona
relaxation ofthe rules.
6. That an interview described on MSNBC entitled ^^Biden on Start,^ikiLeaks" exists.
In this instance, judicial notice is conditional on the detense providing the Court with the date of
this interview. 7^.

35723

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

I A DEFENSE CLARIFICATION

OF COLLOQUY FOR
STIPULATIONS OF EXPECTED
TESTIMONY (PROSECUTION
EXHIBITS 130 131)

ON 1 JULY 2013

V.

MANNING, Bradley E., PFC

us. my.

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

DATED: 1 JULY 2013



1. On 1 July 2013 this Court completed a colloquy with PFC Manning with respect to
Prosecution Exhibits 180 and 181, which are stipulations of expected testimony for OGA
Witnesses.

2. Both the Government and the Court referred to the witnesses by the number that
corresponded with the witnesses on Appellate Exhibit 479, a Government Grunden ?ling.
Speci?cally, the witness for Prosecution Exhibit 180 was referred to as while the witness for
Prosecution Exhibit 181 was referred to as #29.

3. During the colloquy the Defense indicated that the Defense has internally referred to the
witnesses from Prosecution Exhibits 180 and 181 by their corresponding numbers from
Appellate Exhibit 475, the Govemment?s most recent witness list. Speci?cally, the witness for
Prosecution Exhibit 180 was referred to as #23 by the Defense, and the witness for Prosecution
Exhibit 181 was referred to as #107 by the Defense.

4. The Defense, per the Court?s request, sets forth that the individual identi?the same individual identi?ed as 23 in AE 475. Moreover, the Defense sets forth that the
individual identi?the same individual identi?ed as 107 in AE 475.

5. PFC Manning was aware of the facts set forth in paragraph 4 at the time the Court engaged
him in the colloquy.

Respectfully Submitted


SHUA J. OMAN
CPT, JA

Defense Counsel


. .


.


1"

35724

I certify that I served or caused to be served a true copy of the above on MAJ Ashden

Fein, via electronic mail, on 1 JULY 2013.


JO UA J. TO AN
CPT, JA
Defense Counsel

35725

Appellate Exhibit 589
5 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

35726

Appellate Exhibit 590
3pages
classified
"SECRET"
ordered sealed for Reason2
Military Judge's Seal Order
dated20August2013
stored in the classified
supplement to the original
Record ofTrial

35727

UNITED STATESOF AMERICA
RULINGS Government Motion
ToQualifyMr.DanielLewisasan
Expert

Y.

Manning, Bradley E.
PFCUSArmy,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

2July2013

OnlJuly2013,the Government moved the Court to recognize Mr. Daniel Lewis as an
Expert witness in Counterlntelligence(CI) and value ofU.S.government information to foreign
intelligence sources. The Government established its toundation in both open and closed
sessions. The Defense does not oppose Mr. Lewis as an expert in CI generally but does
challenge his expertise in oftensiveCI and value. The Defense cross examined Mr. Lewis
regarding toundation in both open and closed sessions. The parties presented oral argument in
closedsession. Having received the briefs and having heard oral argument, the Couri tinds and
rules as follows:
Findings ofFact^
1. Mr. Lewis has 29 years ofexperience in CL including CI operations, investigations,
collections,analysis, and functional services. Included in this experience isatour as Chief of
Training for the Department ofDefense (DoD)JointCI training academy (JCITA)for the
military and the Defense Intelligence Agency (DIA). Mr.Lewis'experience includes working as
asenior investigator at the Foreign Cl Activity (FCA)which operates the most sensitive and
signiticant espionage investigations.
2. From 2006^2013,Mr. Lewis ^as the Chief ofthe Counter Espionage Division at DIA. This
was the DIA'smost senior CI position. Mr. Le^is^as the senior level subject matter expert for
CI operations and investigations, supervising 50 55 CI professionals at any given time. He is the
most experienced CI expert in DIA. The Counter Espionage Division retained oversight of all
service CI investigations and operations ^ith DoD and the National SecurityAgency (NSA), to
include espionage investigations and offensive CI operations. Mr. Levels personally briefed the
Secretary and Under Secretary for Defense for Intelligence and Congress.
3. Mr. Lewis wasalead investigator in multiple Cl investigations, including COL George
Trotimoffand Army Sergeant (Ret) David Boone, both convicted ofespionage in providing
information to Russia. Mr. Lewis received the Civilian DoD Cl Investigator ofthe year award
tor both cases, inl996andl999,respectively.
4. Cl investigations are espionage investigations where DoD has an equity. CI operations
involve clandestine activities focused on individuals kno^n to be involved in adversary,
intelligence,or terrorist organizations. Mr. Lewis has experience asacaseofticer in espionage
investigations but has never beenacase agent or case agent manager tor an offensive CI
1
^^^^LL^B^.T^^^,^^^^^^^^^^
^B^G^^E^^^I^^.^^^^^^^^
^^^^^^^:
l^AGE
^^^^
^PAGES

35728

operation. In his position as Chief ofthe Counter Espionage Division atDIA, he has oversight
ofall DoD offensive CI operations.
5. Mr. Lewis has testitiedasafact witness in court but has never been ^ualitied as an expert
witness in any court tor any purpose.
TheLaw^
1. Awitness who is ^ualitied as an expert by knowledge, skill,experience, training, or
education may testity in the form of an opinion or otherwise if:
(a) theexpert'sscientitic,technical,or other specialized knowledge will help the trier of
tact to understand the evidence or to determineafact in issue;
(b) the testimony is based on sufticient tacts or data;
(c) the testimony is the product ofreliable principles and methods; and
(d) the experi has reliably applied the principles and methods to the facts ofthe case.
MRE702
2. An expert may base an opinion on facts or data in the case that the expert has been made
aware ofor has personally observed. If experts in the particular tield would rely on those kinds
offacts or data in forming an opinion on the subject, they need not be admissible tor the opinion
to be admitted. MRE 703 in relevant part.
3. The Court is the ^^gatekeeper" for all expert testimony,^hatever the basis. Toallow expert
testimony,the Court must tind relevance and reliability. Among the factorsacourt may consider
to determine whether expert testimony is admissible under MRE 702 is(l)whetheratheory or
technique has been tested; (2)^hether it has been subjected to peer review and publication; (3)
the known or potential rates of error in usingapariicularscientitic technique and the standards
controlling the techniques operation; and(4) whether the theory or technique has been generally
accepted in the pariicularscientilic tield. These tactors are nota^^test" for reliability,rather
reliability isaflexible inquiry focused on the goal of ensuring that the experi ^^whether basing
testimony on professional studies or personal experience employs in the courioom the same level
ofintellectual rigor that characterizes the practice ofexperts in the relevant tield."
^^^^^^^,65M.J.145,149(C.A.A.F.2007)^^^^^^^.^^^^^7^^^^^C^^^^^,7.77^^.C^^
526US 137 (1999)
4. Relevant evidence may be excluded if its probative value is substantially outweighed by the
danger ofuntair prejudice or other considerations enumerated under MRE 403.
Conclusions ofLaw^

35729

1. Mr. Lewis'expertise comes trom his 29 years of experience in CI investigations and
oversight ofoffensiveCl operations. HeisanexpertinalltacetsofCI. His testimony will be
based on information gathered through offensive CI operations and systematically entered into
systems employed by the Counter Espionage Division ofDlA. These systems are routinely used
by DIA to collect data trom oftensiveCI operations and such data is used prepare brietings and
other memoranda the Secretary and Under Secretary ofDetense for Intelligence and for
Congress and has been generally accepted by these entities as accurate. The data collected by
these systems is reliable.
2. The Court has issued an oral classitied supplement to this ruling. The Court accepts Mr.
Lewis as an expert in CI. The Court does not accept Mr. Le^is as an expert in the value ofU.S.
government information to foreign intelligence services. This expertise is too overbroad. Mr.
Lewis may testify and offer an opinion with regard to value ofcertain charged documents upon
layingaproper foundation within the parameters of the oral classitied supplement to this ruling.
3. The Court has done an analysis under MRE 403 and linds that Mr. Lewis'testimony is highly
probative. The probative value ofthe evidence is not substantially outweighed by the danger of
unfair prejudice or other MRE 403 factors. The Court will consider this evidence tor its proper
purpose within the parameters ofthis ruling and its oral classitied supplement.
Rulings The Government motion to duality Mr. Lewis as an expert is Granted in Part.
SoOrderedthis2^^dayofJuly2013

DENISERLIND
COL,JA
Chief Judge,l^^ Judicial Circuit

35730

UNITED STATES OF AMERICA
RULING^Relevanceand
Non-Hearsay l^or Prosecution
Motion I^orJudicial Notice
Manning, Bradley E.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

2July2013

Onl6January2013,the Court deferred ruling on the Goverrm^ent motion for the Court
to takejudicial notice ofcertain adjudicative facts until the Government offered the evidence at
trial to allow the Court to be fully intormed when making relevance^hearsaydeterminations(AE
472). The Court ruled that it would grant the Government'smotion for judicial notice if the
Government could establish relevance andanon-hearsay or hearsay exception usage. On 28
June 2013,the Government renewed its request for the Couri to takejudicial notice ofthe
following three adjudicative facts.
(1) Julian Assange was located in Iceland inFebruaryof2010and was working on the
Icelandic Modern Media Initiative.
(2) LTC Packnett was quoted inaNewYork Times ariicle,datedl8March 2010.
(3) ANewYorkerprotile of Julian Assange titled ^^No secrets: Julian Assange'sMission
forTotalTransparency"exists and ^asdated7June 2010.
The Government also providedaprofferofrelevance and nonhearsay or hearsay
exception use (AE 587) and pinpoint cites to admitted exhibits in suppori ofits profter(AE
587(a))
Detense opposes and maintains its relevance objection to(l), (2), and (3)and hearsay
objections to (2) and (3).
TheLaw^ The Court adopts the law as stated in itsl6January 2013 ruling regardingjudicial
notice motions (AE 472).
Conclusions of La^^
1. The Court has reviewed the proffer by the Government and each ofthe pinpoint cites in
support in PEs81,123,and 30 and the testimony ofSA Shaver, and Mr. Lamo. The Court also
notes the Defense conceded during the testimony ofMr. Chad Madaras that any searches on
Intelink tor ^^Iceland" and ^^wikileaks" in the Open Source Center on the computer shared by Mr.
Madaras and PFC Manning were not conducted by Mr. Madaras.

AP^ELLATEE^^i^iT^^^^
^^^^^^^EFERENCED:
^
^AGE
GF
^PAGE^

35731

2. Each of the three judicially noticeable adjudicative tacts are relevant and are ofteredf^r nonhearsay purposes as set forth in the Govemment'sproffer(AE 587).
Rulings The Government motion tor judicial notice ofthe adjudicative tacts in(l)^(3)above is
Granted.
So Ordered this 2nd day ofJuly2013.

T^ENISERLIND
COL,JA
Chief Judge,l^^ Judicial Circuit



35732

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE MOTION FOR
v. DIRECTED VERDICT:

CHARGE II, SPECIFICATIONS
4, 6, 8, 12 (18 U.S.C. ?641
OFFENSES)

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: 4 July 2013



RELIEF SOUGHT

l. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 9l7(a), requests this Court to enter a ?nding of not guilty for
Speci?cations 4, 6, 8, and 12 of Charge II.

STANDARD

2. A motion for a ?nding of not guilty should be granted when, viewing the evidence in the light
most favorable to the prosecution, there is an ?absence of some evidence which, together with all
reasonable inferences and applicable presumptions, could reasonably tend to establish every
essential element of an offense charged.? R.C.M. 9l7(d).

ARGUMENT

3. In Speci?cations 4, 6, and 8 of Charge II, the Government has charged that PFC Manning
stole or knowingly converted the Combined Information Data Network Exchange Iraq database
containing more than 380,000 records; the Combined Information Data Network Exchange
Afghanistan database containing more than 90,000 records; the United States Southern
Command database containing more than 700 records. In Speci?cation 12 of Charge II, the
Government has charged that PFC Manning stole or knowingly converted the Department of
State Net-Centric Diplomacy database containing more than 250,000 records.

A. The Government has Failed to Adduce Evidence that PFC Manning Stole or
Converted the Databases in Question

4. In this case, the Government has not alleged that the property of which it has been deprived
were copies of the SIGACTS, detainee assessment briefs, and diplomatic cables or the
information contained within certain databases. Rather, the Government has charged that PFC

.

35733

Manning stole or converted the actual databases themselves. See Charge Sheet. In Speci?cation
4, 6 and 8 of Charge 11, the Government alleges that PFC Manning stole or knowingly converted
the Combined Information Data Network Exchange Iraq database containing more than 380,000
records; the Combined Information Data Network Exchange Afghanistan database containing
more than 90,000 records; the United States Southern Command database containing more than
700 records. In Speci?cation 12 of Charge II, the Government pleads that PFC Manning stole or
knowingly converted the Department of State Net?Centric Diplomacy database containing more
than 250,000 records. Id.

5. For instance, Speci?cation 12 of Charge II reads as follows:

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 4 May 2010 steal, purloin, or knowingly convert another, a record or thing of value of the United States or of a
department or agency thereof, to wit: the Department of State Net-Centric
Diplomacy database containing more than 250,000 records belonging to the
United States government, of a value of more than $1,000, in violation of 18 U.S.
Code Section 641, such conduct being prejudicial to good order and discipline in
the armed forces and being of a nature to bring discredit upon the armed forces.

See Charge Sheet (emphasis added). The other speci?cations are identical in structure. The ?rst
part of the charge mirrors the language in 18 U.S.C. ?64l (?Whoever embezzles, steals, purloins,
or knowingly converts another, any record, voucher, money, or thing
of value of the United States or of any department or agency thereof, The sentence
immediately after the expression ?to wit:? explains what is alleged to have been stolen or
converted?a database. That the database in question contains more than 250,000 cables is
descriptive and does not alter the fact that it is the database itself that PFC Manning is alleged to
have stolen or converted. In other words, PFC Manning is not charged with stealing or
converting more than 250,000 cables contained within the Net Centric Diplomacy database.

PFC Manning is charged with stealing or converting the database itself, which happens to
contain a certain number of cables. A ?database? is not in any way synonymous with the
information or records contained therein. A database is a receptacle for information, much like a
?ling cabinet is a receptacle for paperwork. See, e. Stipulation of Expected Testimony of Mr.
Bora (referring to CIDNE as ?is a reporting and querying system?); Stipulation of Expected
Testimony of Mr. Motes (noting that ?[t]his database stored all detainee assessments?).

6. Notably, the Government did not charge that PFC Manning stole or converted information or
that he stole or converted a copy of records contained within the database. In other words, the
Government could have charged that PFC Manning stole information.? See e. g. United States v.



I The Defense would maintain, however, that information is intangible property not properly within the ambit of
?64l. See United States v. ruong Dinh Hung 629 F.2d 908, 928 (4th Cir. 1980) (?In sum, because a criminal
prohibition against the unauthorized disclosure of classi?ed information would be inconsistent with the existing
pattern of criminal statutes governing the disclosure of classi?ed information and because Congress has always
refused to enact a statute like 641 applicable to the disclosure of classi?ed information, I would hold that 64]
cannot be interpreted to punish the unauthorized disclosure of classi?ed information. Whatever the content of
?thing of value? in the context of other types of government infonnation, this phrase may not be read to include

2

35734

Jeter, 775 F2d 670, *680-1 (6th Cir. 1985) (?The government charged that .leter ?did willfully
and knowingly embezzle, steal, purloin and convert others, and
without authority did sell, convey and dispose of records and things of value of the United States,
the value of which is in excess of $100.00, to wit, carbon paper and the information contained
therein relating to matters occurring on October 5, 1983, before a grand jury??). Or, the
Government could have charged that PFC Manning stole a copy of government records through
the use of a CD, computer time, etc. and that such records are records of the United States
government. See e.g. United States v. Fowler, 932 F.2d 306, 309-310 (4th Cir. 1991) (?Fowler
was not charged with conveying abstract information. He was charged with conveying and
converting documents, which, although copies, were things of value and tangible property of the
United States. True, the documents contain information, but this fact does not deprive them of
their qualities as tangible property and things of See also United States v. Hubbard,
474 F. Supp. 64 (D.C.D.C. 1979) (?The government in response has attempted to predicate a
violation of section 641 on two theories. The first is that the defendants stole the information in
the documents, and the second is that the copies, allegedly made from government documents,
by means of government resources, are records of the government, and thus the copies were
stolen.?; court ultimately did not permit government to proceed with theory that information was
stolen as it held that information was not within the scope of 18 U.S.C. ?641).

7. The Government in this case did not charge that PFC Manning stole or converted
?information? or ?copies?; instead it charged that he stole or converted ?databases.? Such a
distinction is not, in any way, a semantic one: what PFC Manning is alleged to have stolen
directly impacts not only the legal focus of the alleged theft or conversion the res or
property that was allegedly stolen), but also the valuation prong of 18 U.S.C. ?641. That is, if
PFC Manning is alleged to have stolen information, then the value of the information itself (and
not the database) must be established. If PFC Manning is alleged to have stolen a copy of a
government record, then the value of that copy must be established. Consequently, what PFC
Manning is alleged to have stolen or converted is of crucial signi?cance.

8. This proposition, while obvious, is illustrated in concrete terms using the case of United
States v. May, 625 F.2d 186 (8th Cir. 1980). In May, the defendant, a former Adjutant General
of the Iowa National Guard, was charged with several counts of converting ?ight time in
government aircraft by directing unauthorized National Guard ?ights to destinations that allowed
him to visit his ?ance. 625 F.2d at 188-89, 190-91. Notably, the government did not charge the
defendant with converting the entire airplane to his own use as it was obvious that the he had not
stolen or converted the airplane itself. Since the property alleged to have been converted for
each count was ?ight time, see id. at 190-91, and not the entire aircraft used for that ?ight, the

classi?ed information within United States v. Tobias 836 F.2d 449 Cir. 1988) (?Our circuit has adopted
an even broader limitation on the scope of section 641. In Chappell v. United States, 270 F.2d 274 (9th Cir.1959),
we held, after an extensive discussion of the legislative history, that section 641 should not be read to apply to
intangible goods. This interpretation has the advantage of avoiding the ?rst amendment problems which might be
caused by applying the terms of section 641 to intangible goods-like classi?ed information. Thus, we
construe section 641 as being generally inapplicable to classi?ed Since the Government has not
alleged that PFC Manning stole or converted information, there is no need to brief this issue further. If this becomes
a live issue, however, the Defense requests the opportunity to brief the question of whether information is properly
within the scope of 18 U.S.C. ?641.



35735

Government sought to prove value by introducing the ?cost per hour of operation for each

i airplane, which included the salaries of the pilots and the mechanics who serviced the planes.?
Id. at 191. The Government did not offer evidence of the cost of purchasing and the annual cost
of maintaining the entire aircraft. Rather, the Government offered evidence to prove that the
value of the intangible property converted exceeded the statutory amount, as section 641
requires. Thus, May illustrates that stealing ?an airplane? and stealing ?flight time? are two very
different things. First, it is clear that the accused did not steal or convert the airplane since the
airplane was still available for use to the United States government. Second, given that the
government in that case charged that the accused converted ?ight time, it was the value of that
speci?c ?ight time??and not the entire airplane??that was valued for the purposes of section
641. See also United States v. Jordan, 582 F.3d 1239 (1 1th Cir. 2009) (two defendants were
charged with converting certain individuals? criminal records from within the National Crime
Information Center database, rather than with a theft of the database itself; value adduced was
value of the records, not the database itself).

9. If the Government in this case intended to charge theft of the information itself or theft of a
copy of a record, instead of theft of the database, such a charge must appear in the Charge Sheet.
See e. g. United States v. Jeter, 775 F2d 670, *680-1 (6th Cir. 1985) (?The govemment charged
that Jeter ?did willfully and knowingly embezzle, steal, purloin and convert others, and without authority did sell, convey and dispose of records and things of
value of the United States, the value of which is in excess of $100.00, to wit, carbon paper and
the information contained therein relating to matters occurring on October 5, 1983, before a
grand United States v. DiGilio, 538 F.2d 972 (3rd 1976) (government charged that that
the defendants converted to their own use ?records of the United States; that is, photocopies of
o?icial ?les of the Federal Bureau of Investigation?); United States v. Jordan, 582 F.3d 1239,
1246 (1 1th Cir. 2009) (indictment under ?641 alleged that defendant?s ?delivered the printouts
which as property of the United States had a value in excess of $1000?; in a separate count,
indictment alleged that defendant received ?a thing of value of the United States, that is,
information contained in the NCIC records?). Thus, based on the charging documents, the
Government must now prove that PFC Manning stole or converted the actual databases in
question.

10. To analogize the charged offense to one involving tangible property} the Government?s
current charge of stealing or converting a database containing a certain number of records would
be akin to charging an accused with stealing a ?ling cabinet containing a certain number of
documents. Here, there is no evidence to suggest that the ??ling cabinet? database) was
stolen or converted. The ?ling cabinet has remained in the exact same place and used by the
government in the exact same marmer before and after the alleged theft or conversion. Indeed,
the ?ling cabinet is still available to this day and used in the same manner as it was prior to the
alleged theft or conversion. Further, there is no evidence that actual documents contained within
the ?ling cabinet were stolen or converted. To the extent that there is an argument that something
was stolen or converted, it is a copy (in this case, a digital copy rather than a photocopy) of the
documents contained within the ?ling cabinet. Stealing or converting a digital copy of a

3 Section 641 has its origins in tangible property and its substance cannot be relaxed or altered to account for any
dif?culty that the Government may happen to encounter in using this section to charge the theft or conversion of
intangible property.

document within the ?ling cabinet is not, by any stretch of the imagination, the same thing as
stealing the ?ling cabinet itself. This is readily apparent when one considers valuation. One
might have a ?ling cabinet that costs, say, $1000, but the value of the documents contained in the
?ling cabinet is only $10.00 (the cost of the paper and ink because the information contained
therein in not inherently valuable). The contents of the ?ling cabinet are not coextensive with
the ?ling cabinet itself either in terms of property or value.

1 1. To sustain a theft conviction under Section 641 the Government has the burden of proving
that PFC Manning wrongfully took ?property belonging to the United States government with
the intent to deprive the owner of the use and bene?t temporarily or pennanently.? To sustain a
conversion conviction under Section 641, the Government has the burden of proving ?a misuse
[that] seriously and substantially interfere[s] with the United States govemment?s property
rights.? See Appellate Exhibit 410. The Supreme Court held in Morissette v. United States, 342
U.S. 246 (1952) that under 18 U.S.C. ?64l ?[p]robably every stealing is a conversion, but
certainly not every knowing conversion is a stealing.? Thus, at a minimum, the Government
must prove that PFC Manning?s took the databases in question in a way that seriously and
substantially interfered with the govemment?s property rights in the databases.

12. In United States v. Collins, 56 F.3d 1416 (D.C. Cir. 1995) (per curiam), the court explained
that ?[t]he cornerstone of conversion is the unauthorized exercise of control over property in
such a manner that serious interference with ownership rights occurs.? 56 F.3d at 1420
(emphasis in original). Collins involved a Section 641 prosecution of a technical analyst at the
Defense Intelligence Agency who used the agency?s classi?ed computer system to create and
maintain hundreds of documents relating to the analyst?s ballroom dance activities. Id. at 1418.
In the Section 641 prosecution, the Government alleged that the defendant converted, among
other things, the agency?s computer time and storage space.3 Id. The court held that there was
insuf?cient evidence to support the charge relating to conversion of computer time and storage
because the Government did not prove that the defendant?s use of the system for non-work
related tasks seriously interfered with the Govemment?s property rights in that system:

[T]he government did not provide a shred of evidence in the case at bar that
[defendant] seriously interfered with the govemment?s ownership rights in its
computer system. While [defendant] concedes he typed in data and stored
information on the computer regarding his personal activities, no evidence exists
that such conduct prevented him or others from performing their of?cial duties on
the computer. The government did not even attempt to show that [defendant?s]
use of the computer prevented agency personnel from accessing the computer or
storing infonnation. Thus, [defendant?s] use of the government computer in no
way seriously interfered with the government?s ownership rights.

Id. at 1421.

13. Along similar lines, the Eighth Circuit in United States 12. May, 625 F.2d 186 (1980),
reversed the defendant?s Section 641 conviction because the district court failed to instruct the
jury that conversion under Section 641 required a ?nding that the defendant?s conduct seriously

3 Notably, the prosecution did not allege that the defendant in that case stole or converted the computer itself.

5

35737



violated the Govemment?s property rights. 625 F.2d at 188. In May, the defendant, a former

Adjutant General of the Iowa National Guard, ?directed a series of unauthorized ?ights, using
National Guard aircraft, fuel and personnel, that served his own convenience rather than that of
the National Guard.? Id. at 188-89. More speci?cally, the defendant directed 11 unauthorized

?ights that allowed him to visit his ?ance in various parts of the country. Id. at 189. In holding
that the district court?s failure to instruct the jury on the serious interference element of
conversion was reversible error, the May Court explained that:

The touchstone of conversion is the exercise of such control over property that
serious interference with the rights of the owner result, making it just that the
actor pay the owner the full value of the object.



The problem with the district court?s instruction is that it assumes that any misuse
or unauthorized use of property is a conversion.



[T]he instruction misses the mark because it does not mention the requirement
that the misuse constitute a serious violation of the owner's right to control the
use of the property.

Id. at 192.

14. Similarly, the Ninth Circuit in United States v. Kueneman reversed the defendant?s Section
641 conversion conviction because of an inadequate showing that the defendant?s conduct
seriously interfered with the Govemment?s property rights. No. 94-10566, 1996 WL 473690, at
*2 (9th Cir. Aug. 20, 1996) (unpublished). In that case, the defendant was the president of a
non-profit organization that participated in a Department of Housing and Urban Development?s
(HUD) program that leased HUD homes to non?profit organizations for $1/year, provided that
the non?prof1t organizations agreed to sublet these homes to homeless persons. Id. at The
defendant?s alleged conversion occurred when he allowed his daughter to live in one of the HUD
homes for six weeks after quarrelling with her husband. Id. The Ninth Circuit determined that
the Govemment?s evidence of conversion was insufficient as a matter of law. Id. The court
explained that ?not all misuse of government property is conversion. To prove conversion, the
government must show [defendant?s] misuse of the HUD house was a ?serious interference with
the [govemment?s] property rights.? A ?serious interference? is one that prevents the government
from making some other use of the property.? Id. at *1-2 (internal citations omitted). The I
evidence of conversion was thus held to be insufficient because ?[t]he government offered no
evidence that it had other contemporaneous uses for the HUD home.? Id. at

15. Thus, it is clear that the Government must show that PFC Manning?s alleged actions resulted
in a substantial or serious interference with the Govemment?s use of the databases in question in
order for PFC Manning to be found guilty of knowing theft or conversion of databases under
Section 641. The Government has failed to offer any such evidence since it is clear that PFC
Manning did not steal or convert the databases in question.

6





16. The Government has not introduced any evidence that the property in question here?the
various databases?were ever moved, altered, corrupted, changed or taken away from the United
States government. For instance, there is no evidence that WikiLeaks has, or had, the CIDNE
database, the Net-Centric Diplomacy database, or the United States Southern Command database
in its possession, such that it could make use of those databases. To the extent that WikiLeaks
had anything, it is the information that may have been contained within the database at a certain
point in time. The databases themselves always remained intact and available exclusively to the
United States government.

17. Further, the Government has adduced no evidence to shows that information was actually
deleted or removed from the databases, such that the Government was unable to access the
databases or parts thereof. The Government has not shown, for instance, that the databases were
?down? for a period of time, that PFC Manning?s actions rendered the databases inaccessible, or
that information was missing from the databases. See eg. United States v. Collins, 56 F.3d 1416
(D.C. Cir. 1995) (?While [defendant] concedes he typed in data and stored information on the
computer regarding his personal activities, no evidence exists that such conduct prevented him or
others from performing their of?cial duties on the computer. The government did not even
attempt to show that [defendant?s] use of the computer prevented agency personnel from
accessing the computer or storing information. Thus, [defendant?s] use of the government
computer in no way seriously interfered with the government?s ownership

18. The Government has also not provided any evidence that suggests that PFC Manning?s
actions interfered in any way with the use and bene?t of the databases in question, or that his
actions seriously and substantially interfered with the government?s use of the databases. The
evidence shows that the databases were used in the exact same way both before and after PFC
Manning?s disclosure of the information contained in the databases. The testimony of the unit
witnesses indicates that there was no difference in the use of the CIDNE and other databases
after WikiLealthe databases containing the SIGACTS, diplomatic cables or detainee briefs were of less value to
the United States government after PFC Manning?s actions. The Government has thus not
adduced any evidence that PFC Manning stole or converted the databases within the meaning of
18 U.S.C. ?641. See e. g. Stipulation of Expected Testimony of Mr. Bora (?At no time was the
SIGACT information charged in this case unavailable for access on the CIDNE database. Those
that accessed the SIGACT database before May of 2010 did so in the same manner after May of
2010. We continue to use the SIGACTS charged in this case in the CIDNE database. To the best
of my knowledge, the United States Government has never made these databases publically
available?).

19. To once again analogize the offense to the tangible world: the ?ling cabinets were always in
the exclusive possession of the United States government; the ?ling cabinets were not vandalized
or destroyed; the ?ling cabinets were not altered in any way (much less in a way that impeded
the government from using them); all the components of the ?ling cabinets g. the brackets, the
tabs, the ?le folders) remained intact; all the ?les in the ?ling cabinet remained where they were;
the ?ling cabinet itself was not made unavailable for others to use. The analogy to the ?ling



cabinet helps concretize the idea that PFC Manning in no way, shape, or form, stole or converted
the databases in question.

20. The Government obviously has not charged that PFC Manning stole or converted
information contained within a database. Nor has it charged that PFC Manning stole or
converted copies of digital records kept by the United States government. Instead, it has charged
that he stole or converted the databases themselves. Since the Government has introduced no
evidence that PFC Manning stole or converted the databases in question, he must be found not
guilty of the section 641 offenses.

21. Indeed, even if the Government had charged PFC Manning with theft of information
contained within the database (rather than theft of the database itself), the Government still has
not introduced evidence that PFC Manning stole or converted the information. The Government
has not introduced any evidence that it lost possession or the bene?t of the information in
question. The infonnation contained in the databases in question was always available to
and the United States government as needed. In United States v. Jeter, 775 F2d 670, (6th
Cir. 1985), the accused was charged with stealing carbon paper of a grand jury indictment, along
with the infonnation itself. The accused argued that he could not be found guilty under section
641 ?because the government did not lose possession of any informational property due to his
activities.? Id. at 680. The Sixth Circuit responded to this argument by noting that the
Government charged eter with stealing, purloining or converting or with selling, conveying and
disposing of records and things of value to the United States. The Court noted:

But the government indicted eter under Section 641 not by simply invoking the
litany of embezzlement, stealing and/or conversion. The government charged that
eter did willfully and knowingly embezzle, steal, purloin and convert others, and without authority did sell, convey and dispose of
records and things of value of the United States, the value of which is in excess of
$100.00, to wit, carbon paper and the information contained therein relating to
matters occurring on October 5, 1983, before a grand jury.

This second half of eter?s Section 64l?regarding unauthorized selling,
conveying, and disposing of records and/or things of value to the United States
govemment??describes a set of distinguishable activities that are alone suf?cient
for conviction under Section 641.

Id. at *680-1 (emphasis in original). It is clear that the Sixth Circuit found the evidence
sufficient to support a conviction under the ?sell/convey/dispose? prong of 18 U.S.C. ?641, not
under the ?steal/purloin/convert? prong of the section. In other words, the accused conveyed
records and things of value; he did not steal records and things of value.

22. Similarly, in United States v. DiGilio, 538 F.2d 972 (3rd 1976), the defendant argued that the
government had not established a violation under section 641 on the basis that ?at most, the
government lost exclusive possession of the information contained within its con?dential
records, and that Congress never intended section 641, which is essentially a larceny statute, to
protect the governmental interest in exclusive possession of its information.? Id. at 977
(emphasis added). The Third Circuit, like the Sixth Circuit, avoided the issue of whether one

8

35740

could be guilty of stealing or converting when the information in question was still in the
possession of the United States government. Instead, the court noted that duplicate copies were
made using U.S. government resources and that those copies were, in themselves, records within
the meaning of 18 U.S.C. 641. Id. at 978 (?since there was an asportation of records belonging
to the United States we need not in this case decide whether appropriation of information alone
falls within section 641?). See also United States v. Morison, 844 F.2d 1057, l077.(4th 1988)
(distinguishing between theft of original information versus theft of copies: ?Those cases
involved copying. The defendant?s possession in both cases was not disturbed. This case does
not involve copying; this case involves the actual theft and deprivation of the government of its
own tangible These cases all suggest that an accused cannot be found guilty under
the ?steal, purloin or convert? portion of section 641 when the govemment?s possession of the
property or information in question was not otherwise disturbed.

23. The aforementioned discussion of information, however, is of no consequence given the
current charges that PFC Manning stole or converted certain databases (not the information
contained therein). Since the Government has not introduced any evidence that PFC Manning
stole or converted the databases in question, the Defense requests that this Court enter a ?nding
of not guilty under R.C.M. 917.

B. The Government Is Not Permitted to Amend the Charge Sheet To Now Allege that
PFC Manning Stole ?Information? or ?Copies of Records?

24. To the extent that the Government will now argue that it intended to charge with PFC
Manning with knowing theft or conversion of information contained within the databases or theft
of Copies of government records (rather than charging PFC Manning with theft or knowing
conversion of the databases themselves), the Defense submits that the Government is not
permitted to do this, as it is outside the scope of the Charge Sheet. Should this Court consider
allowing the Government to do so, the Defense requests an opportunity to further brief this issue
and requests oral argument.

25. That the Government intended to charge and prove that PFC Manning stole the databases
and not information is apparent by looking at the evidence that the Government has introduced
on valuation. The Government?s witnesses all discussed in detail in their stipulations of
expected testimony how much it costs to establish and maintain the relevant databases and
associated infrastructure in various years. This clearly shows that the Government meant to
charge theft of the databases?and not the information?and accordingly should be required to
prove the charges in the manner charged. See also Appellate Exhibit 58 (in unreasonable
multiplication of charges motion, Government emphasizing that ?the 18 U.S.C. ?64l offenses
are aimed at the theft of United States Government?owned databases?) (emphasis added).

26. Any change to the charge sheet would be a major amendment which is not permitted over
the accused?s objection. See R.C.M. 603(d) (major changes ?may not be made over the
objection of the accused unless the charge or speci?cation affected is preferred Major
changes ?add a party, offense, or substantial matter not fairly included in those previously
preferred, or which are likely to mislead the accused as to the offenses charged. R.C.M. 603(b).
Only changes where ?no substantial right of the accused is prejudiced? are permitted. Id. It



35741

(6

seems to be fairly obvious that the words ?database information? and ?copy? mean different
things and would have different values for the purposes of the valuation prong of 18 U.S.C.
?641. Accordingly, any change as to what PFC Manning would now have to defend against
would seriously prejudice his defense.4

27. In United States v. Marshall, No. 08-0779 (C.A.A.F. 2009), C.A.A.F. held that:

A variance that is ?material? is one that, for instance, substantially changes the
nature of the offense, increases the seriousness of the offense, or increases the
punishment of the offense.? Finch, 64 M.J. at 121 (citing United States v.
Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003)). A variance can prejudice an appellant
by (1) putting ?him at risk of another prosecution for the same conduct,? (2)
misleading him ?to the extent that he has been unable adequately to prepare for
trial,? or (3) denying him ?the opportunity to defend against the charge.

Id. at 5 (available online at: 2008Sep


28. In Marshall, the accused was charged with escaping from the custody of one, CPT
Kreitman. The evidence adduced by the government at trial showed instead that the accused
escaped from the custody of SSG Fleming. At the closing of the govemment?s case, the defense
moved under R.C.M. 917 for a directed verdict, arguing that there was absolutely no testimony
regarding the accused escaping from CPT Kreitman?s custody. The military judge denied the
motion and convicted the accused by exceptions and substitutions of escaping from the custody
of SSG Fleming.

29. C.A.A.F. held that the military judge permitting a variance in these circumstances amounted
to error and that the ?nding of guilty needed to be set aside. C.A.A.F elaborated:

On the facts in this case, we are convinced the substitution was material. The
military judge convicted Appellant by exceptions and substitutions of an offense
that was substantially different from that described in the speci?cation upon
which he was arraigned. See Te?eau, 58 M.J. at 67.

Although the nature of the offense remained the same escape from custody -- by
substituting SSG Fleming for CPT Kreitman as the custodian from whom
Appellant escaped, the military judge changed the identity of the offense against
which the accused had to defend. This denied him the ?opportunity to defend
against the charge.?

4 To give just one example, had the Defense expected to have to defend against a charge that PFC Manning stole or
converted information or stole or converted a copy of records, the Defense would have hired an expert on valuation.
Since the Government instead charged PFC Manning with stealing a database, the Defense did not hire an expert
because it knew that it could, through the Government?s own witnesses, rebut any allegation that PFC Manning stole
or converted the databases.

l0



Having found the variance to be material, we must test for prejudice. Appellant
argues that the military judge?s ?ndings by exceptions and substitutions ?gave the
appellant no chance to defend himself against this new charge.? The Government
argues that there is no prejudice, because regardless of whose custody he escaped
from, there was only one event, Appellant knew the nature of the offense, and was
able to defend against it. We disagree. Appellant was charged with escaping
from CPT Kreitman?s custody; the Government presented no evidence that he
was in the captain?s custody, but attempted to prove that SSG Fleming was acting
as CPT Kreitman?s agent; the military judge found Appellant guilty by exceptions
and substitutions of escaping from SSG Fleming?s custody. Had he known that
he would be called upon to refute an agency theory or to defend against a charge
that he escaped from SSG Fleming, Appellant is unlikely to have focused his
defense and his closing argument on the lack of evidence that CPT Kreitman
placed him in custody or that he escaped from the custody of CPT Kreitman.
?Fundamental due process demands that an accused be afforded the opportunity
to defend against a charge before a conviction on the basis of that charge can be
sustained.? e?eau, 58 M.J. at 67; accord Dunn v. United States, 442 U.S. 100,
106-07 (1979). Under these circumstances, we do not believe that Appellant
could have anticipated being forced to defend against the charge of which he was
ultimately convicted. Accordingly, we ?nd the material variance prejudiced
Appellant such that the military judge's ?nding by exceptions and substitutions
cannot stand.

Id. at 7.

30. Similarly, in the instant case, changing the charge from stealing a ?database? to stealing
?information? or ?copies of records? is a fundamental change which alters the very substance
and identity of the offense as well as the accused?s opportunity to defend against the charge. Just
as C.A.A.F. found that escaping from the custody of CPT Kreitman was a different offense than
escaping from the custody of SSG Fleming, so too is stealing or converting a ?database? a
different offense than stealing or converting ?information? or ?copies of records." The fact that
all involve some form of ?stealing or converting? is irrelevant and does not support the granting
of a variance. In Marshall, C.A.A.F. outright rejected the government?s argument to a similar
effect:

The Government also argues that it is immaterial from whom Appellant escaped,
because the escape was wrong?il in any event. The fact that two alternative
theories of a case may both involve criminal conduct does not relieve the
government of its due process obligations of notice to the accused and proof
beyond a reasonable doubt of the offense alleged. See United States v. Ellsey, 16
C.M.A. 455, 458-59, 37 C.M.R. 75, 78-79 (1966).

Id. at 9, note 3. See also United States v. Longmire, 39 M.J. 536, 540 (A.C.M.R. 1994) (noting
that a proposed variance which substituted the violation of an order issued by one commander
for the violation of an order issued by another commander ?changed the essential character of the
original charge? and was therefore not permissible).

ll



31. Similarly, in United States v. Wilkins, 1973 WL 14267 (A.C.M.R. 1972), the accused was
charged with theft of United States currency of a value of $75.00. At trial, the government
introduced proof that the accused stole a wallet, but did not speci?cally introduce proof of the
contents of the wallet, if any. The court stated:

It appears from the briefs of both the appellant and the government that in the
offense of robbery, it is necessary only to establish that something of value was
taken and the kind (identity) of property taken is of no import. Thus, we are
asked to make the ?ndings conform to the proof irrespective of the pleadings. In
so doing, we would ?nd that the appellant did not, as alleged, rob Specialist
Belgodere of $75.00 in US currency, but of a wallet of some value. In our
opinion such ?ndings would so change the identity of the offense charged as to
result in a fatal variance between the ?ndings and the allegations. Accordingly,
the Court must conclude that the evidence is insuf?cient to support the ?ndings of
guilty of Speci?cation 2 of Charge II.

Id. at 639. Clearly, as the court held in Wilkins, the identity of the res that is alleged to have
been stolen is critical. One cannot, after the evidence shows that what was stolen was different
than what was alleged to have been stolen, change the charge sheet to have the two match up.
This is, in the words of the court in Wilkins, a ?fatal variance? that would ?change the identity of
the offense charged.? Id.

32. Accordingly, the Government is not able at this late date to change the Charge Sheet to
reflect what it perhaps should have charged PFC Manning with. This Court, in other words,
cannot make the Charge Sheet ?t the evidence. And any request by the Government to do so
must be denied. See Lorzgmire at 539 (?The fact that the amendment was proffered by the trial
counsel after the trial defense counsel had served the defense?s motion to dismiss the original
speci?cation on him, suggests that the trial counsel believed the motion had merit?).

C. The Government Has Failed to Adduce Any Evidence of the Value of Copies or of
Information

33. As argued, the Defense maintains that the Government charged PFC Manning with stealing
?databases.? It now cannot argue that PFC Manning should be guilty of ?64l offenses because
its proof shows that PFC Manning stole ?information? or ?copies of records.? However, even if
this Court were to consider an amendment to the charge sheet?-which the Defense opposes?the
Government still has not adduced competent evidence of valuation under ?641.5

34. As a preliminary matter, the Government absolutely cannot be permitted to ?mix and match?
its theories and offenses. For instance, the Government cannot introduce evidence of valuation
of, say, the creation of a database and then argue that PFC Manning stole or converted copies of

5 The Defense makes this argument here simply for the sake of rebutting any potential argument that the
Government will advance in response to this motion. In reality, this entire discussion of valuation is super?uous
since it is clear that the Government has not established that PFC Manning stole or converted the CIDNE, Net-
Centric Diplomacy and SOUTHCOM databases.

12



35744

records or information in the database. Rather, if the Government introduces valuation evidence
related to the creation of a database, it must prove that PFC Manning stole or converted the
database itself, not information contained within the database or copies of records in the
database. Conversely, if the Government argues that PFC Manning stole copies of records or
information contained within the database, it must value the copies of records or information
within the database. At bottom, the Government cannot be permitted to prove that PFC Manning
stole copies of records or information for the purposes of establishing the ?steal, purloin or
convert? prong of section 641, and then prove the value of the database itself for the purposes of
the valuation prong.

35. Again, to use the ?ling cabinet analogy, the Government cannot be permitted to argue that 1
PFC Manning stole information or copies of records from the ?ling cabinet, and then rely on the
value of the ?ling cabinet itself to establish the value of the information or copies of the records.
As indicated above, one might have a ?ling cabinet that costs $1000, but that does not mean that i
the contents of the ?ling cabinet are worth $1000. They could be worth or they could be

worth $10,000. The valuation of a ?ling cabinet does not speak at all to the valuation of the

contents contained therein. See United States v. Wilkins, 1973 WL 14267, *639 (ACMR 1972)

(evidence of theft of wallet did not establish that the wallet?s contents were $75.00 as charged; a

variance was not permitted since this would change the ?nature of the offense charged?).

36. If the Court permits the Government to proceed with a charge that PFC Manning stole
information or copies of records (which the Defense submits it cannot for the reasons outlined
above) the Government has still not introduced even a shred of evidence as to the value of the
information or copies of the records.

37. Courts have been stringent on the proof required to establish valuation for the purposes of 18
U.S.C. ?641. In United States v. Wilson, 284 F.2d 407 (4th Cir. 1960), the Fourth Circuit stated:

A fact which distinguishes a violation punishable by imprisonment for not more
than one year from a violation punishable by imprisonment for ten years cannot
be permitted to rest upon conjecture or surmise. In order to sustain the imposition
of the higher penalty, it was as incumbent upon the Government to prove a value
in excess of $100.00 as it was to prove the identity of the defendant as the
perpetrator of the crime, or the ownership of the property.

See also United States v. Thweatt, 140 120, 433 F.2d 1226 (1970) (?When there is
a possibility of convicting the defendant of either grand or petit larceny offenses which carry
signi?cantly different penalties and which are distinguished solely by the value of the property
taken it is essential that the government introduce? evidence of that value in order to give the jury
a firm basis upon which it can render a verdict?).

38. The leading case for this proposition is United States v. Wilson, 284 F.2d 407 (4th Cir.
1960). In Wilson, the defendant was charged with the theft of 72 ri?es at a time when Section
641 only required the property to have value in excess of $100 for a felony conviction. Id. at
408. Furthermore, the indictment alleged that the value of the 72 ri?es was $7,500. Id. at 407.
The Government, however, offered no evidence at trial on the value of the ri?es, but the jury still

13

35745

found the defendant guilty on the felony charge. Id. at 408. To reach the conclusion that the
ri?es had value in excess of $100, the jury only needed to infer that each ri?e had a value of at
least $1.39. See DiGilio, 538 F.2d at 980-81 (discussing Wilson). The Fourth Circuit vacated
the defendant?s 7 ?/2-year sentence because no evidence of the value of the ri?es was offered.
Wilson, 284 F.2d at 408. The Wilson Court explained its rationale as follows:

The Government . . . failed to produce any evidence whatsoever as to the value of
the stolen weapons. We are asked to take judicial notice that 72 ri?es are worth
more than $100.00, but we cannot on the basis of anything in the testimony form
a judgment as to value for the purpose of supporting the greater penalty. Nor, in
the absence of any proof of value, could the jury be permitted to speculate on this
point merely from the appearance of the articles. A fact which distinguishes a
violation punishable by imprisonment for not more than one year from a violation
punishable by imprisonment for ten years cannot be permitted to rest upon
conjecture or surmise. In order to sustain the imposition of the higher penalty, it
was as incumbent upon the Government to prove a value in excess of $100.00 as
it was to prove the identity of the defendant as the perpetrator of the crime, or the
ownership of the property.

Id.

39. Similarly, in United States v. Horning, 409 F.2d 424 (4th Cir. 1969), the defendant was
convicted under Section 641 of stealing several tools from a military base?s tool shed. 409 F.2d
at 425. The only competent evidence as to the value of the tools offered at trial was the
testimony of the pawn broker who lent the defendant $50 for a portion of the stolen tools. Id. at
426. The Government emphasized that value of the tools in excess of $100 could be inferred
from ?the ?common knowledge? that pawnbrokers do not lend the full value of pledged goods.?
Id. The Homing Court found this evidence insufficient to sustain the felony sentence imposed
and remanded for resentencing. Id. at 426-27. The court explained: think the inference
the Government would draw from the stipulated testimony too speculative to establish in a
criminal proceeding the value of the stolen property. Certainly no suf?cient foundation was
provided to enable the jury to ?nd beyond a reasonable doubt this essential element of the
offense charged.? Id. at 426.

40. Additionally, in Di Gilio, the Government established that the defendant purchased the stolen
FBI ?les from a codefendant on 25-35 occasions and paid more than $1,000 for the documents in
the aggregate. 538 F.2d at 979-80. The Government contended that ?because in the aggregate
DiGilio paid over $1,000, the jury could infer that at least one of the thefts was of records having
a market value of over $100.? Id. at 980.6 The DiGilio Court disagreed, concluding that:

[T]here was insuf?cient evidence from which the jury could infer that any of the
several thefts that the [G]overnment proved was of a record having value in

6 DiGilio was decided prior to 2004, when Section 641 was amended to permit aggregation of the value from all of
the counts for which the defendant is convicted. See Identity Theft Penalty Enhancement Act, Pub. L. No. 108-275,
4, 118 Stat. 831, 833 (2004). Thus, the issue in DiGilio was whether there was suf?cient evidence to conclude
that any one of the 25-35 purchases established value in excess of $100. See 538 F.2d at 979-80.

14

35746

excess of $100. We do not approve the [trial] court?s charge that the jury could
determine the cost of gathering and producing the information or the market value
in a thieves? market ?on the basis of (its) common knowledge and experience, and
the reasonable inferences to be drawn from the evidence.? No reasonable
inferences of market value of property involved in any particular theft could be
drawn from the evidence. Permitting juror speculation as to value in the absence
of evidence was, for the reasons set forth in United States v. Wilson and the cases
which have followed it, error.

Id. at 981 (quoting trial court).

41. As discussed, to the extent that the Government has introduced evidence of valuation
pertaining to the databases in question, such evidence is irrelevant because it is clear from the
Govemment?s evidence that PFC Manning did not steal the database (or, to use the tangible
analogy, he did not steal the ?ling cabinet). Even if the Government sought to rely on the theft
of copies of records or information, it has not produced any evidence as to the value of the copies
or the value of the information.

Valuation of ??Copies'? of Allegedly Stolen or Converted Records

42. In addition to the market valuation method, Section 641 authorizes ?cost price? as a method
of proving value. See 18 U.S.C. 641. Under this method, the cost of producing, compiling or
using the item allegedly stolen or converted can be introduced to show that the item has value in
excess of the statutory amount. In all prosecutions utilizing the cost price valuation method, the
relevant cost is the cost of the property actually embezzled, stolen, purloined or
this case, digital copies of records contained within certain databases.

43. In United States v. DiGilio, 538 F.2d 972 (3rd Cir. 1976), for instance, the court held that the
?a duplicate copy is a record for purposes of the statute, and duplicate copies belonging to the
government were stolen.? Id. at 977. In terms of valuing this duplicate copy, the court held:

It is not necessary to accept the govemment?s thesis in its entirety to hold that in
this case a 641 violation was established. This case does not involve
memorization of information contained in government records, or even copying
by thieves by means of their own equipment. Irene Klimansky availed herself of
several government resources in copying DiGilio?s ?les, namely, government
time, government equipment and government supplies. That she was not
speci?cally authorized to make these copies does not alter their character as
records of the government.

Id.

44. Similarly, in United States v. Zettl, 889 F.2d 51 (4th Cir. 1989), the defendant was charged
with violating Section 641 by conveying Navy documents without authority. 889 F.2d at 52.
The Government indicated that it intended to prove that the documents had a value in excess of
the statutory amount by showing the ??cost price? of photocopying, transportation, and the other

15

35747

actual costs of the documents Zettl allegedly conveyed without authority.? Id. at 54. Like the
Govemment?s case in Fowler, its case in Zettl did not rely on the costs of creating or maintaining
the place where the Navy documents were kept. See also United States v. Hubbard, 474 F. Supp.
64 (D.C.D.C. 1979) (court allowed prosecution to proceed on theory that ?the copies, allegedly
made ?'om government documents, by means of government resources, are records of the
government and thus the copies were stolen). Likewise, in prosecuting the former adjutant
general in May, the government proved value of the property converted ?ight time in
government aircraft not by offering evidence as to the value of the entire aircraft, but rather by
showing the ?cost per hour of operation for each airplane, which included the salaries of the
pilots and the mechanics who serviced the planes.? 625 F.2d at 191.

45. All these cases illustrate the common sense proposition that if the allegedly stolen or
converted property is a copy of a record, then it is the value of the copy that must be established
the cost of the CD, the time spent copying, the use of government servers etc.). The
Government has introduced no evidence of the value of the copies allegedly stolen or converted
in this case.

Valuation of ?Information? of Allegedly Stolen or Converted Records

46. If the Government instead were to rely on a theory that PFC Manning stole ?information? (a
charge which is outside the Charge Sheet), it still has not introduced competent evidence of the
value of the information allegedly stolen or converted. The most common method used to prove
value of stolen or converted property under Section 641 is proof of market value of some kind.

In this context, market value has been de?ned as ?the price at which the minds of a willing buyer
and a willing seller would meet.? DiGilio, 538 F.2d at 979. Additionally, as Section 641
punishes the embezzlement, theft, or conversion of government property, the market value of the
property can be proven by reference to the ?thieves? market? for that property: ?[T]he value
measure contemplated by [Section] 641 is [not] restricted to an open market price ?between
honest, competent and disinterested men?. We apply to the statute what we feel is its obvious,
and certainly its practical, meaning, namely, the amount the goods may bring to the thief.?
Churder v. United States, 387 F.2d 825, 833 (8th Cir. 1968) (Blackmun, .). Several other
circuits have also approved of the thieves? market valuation method. See, e. Sargent, 504 F.3d
at 771; United States v. Oberhardt, 887 F.2d 790, 792-93 (7th Cir. 1989); Jeter, 775 F.2d at 680;
United States v. Gordon, 638 F.2d 886, 889 (5th Cir. 1981); DiGili0, 538 F.2d at 979; see also
Morison, 604 F.Supp. 655, 664-65 (D. Md. 1985).

47. Mere proof of the existence of a particular market will not be sufficient to establish that the
speci?c property stolen or converted has value in excess of the statutory amount. See Di Gilio,
538 F.2d at 979. In Dz'Gilz'o, for example, the defendants were charged with stealing copies of
information from FBI ?les. Id. at 976. The Third Circuit concluded that there was suf?cient
evidence of the existence of a thieves? market for the converted documents. Id. at 979 (?There
was some testimony that these documents were being peddled around town, and that others
besides DiGilio had been approached about purchasing them. There would appear to be
suf?cient evidence to sustain a ?nding that a thieves? market for the stolen records existed?).
Nevertheless, the Dz'Gz'lio Court determined that ?evidence showing only the existence of that
market is insufficient on the question of value for felony sentences under [Section] Id.

16

35748

The Government in Dz'Gilio failed to establish the value of the stolen records on the thieves?
market and the court accordingly vacated the felony sentences of the defendants and remanded
for misdemeanor sentencing. Id. at 981, 989; see also Sargent, 504 F.3d at 770-71 (reversing
judgment of conviction on the felony Section 641 counts because the government failed to prove
value in excess of $1 ,000, including a failure to show that the property had any ?thieves? value?
under the market valuation method).

48. Thus, in order to utilize the market value method of valuation, the Government is required to
prove the existence of a particular market and that the property allegedly stolen or converted had
a value in excess of the statutory amount at the time of the alleged offense. The Government has
introduced no credible evidence to this effect.

49. The Govemment?s proffered ?expert,? Mr. Lewis, candidly admitted that he did not consider
himself to be an expert in valuation; had never valued information before; had not even seen the
charged documents until last week; had spent only a few hours ?researching? in preparation for
his testimony; and until last week, did not even understand why he would be testifying. Despite
all this, Mr. Lewis offered his opinions on the value of diplomatic cables, SIGACTS, detainee
assessments briefs and the Global Address List. He has no particular or specialized knowledge
of any of these categories of documents?he is simply familiar with the fact that there is a
market for classi?ed information generally.

50. Mr. Lewis? experience with the thieves? market is from the standpoint of a double-agent
American seller who is purporting to sell classi?ed information to a buyer on an arti?cially-
created thieves? market. Mr. Lewis admitted that part of the amount of money that a buyer
would pay for classi?ed information is for the ?relationship? that the buyer is fostering with the
seller. He could not apportion how much of that money is for the information and how much is
for the relationship itself.

51. Mr. Lewis? ?methodology? for valuing information was not reliable, neutral or trustworthy.
He essentially testi?ed that he would do a keyword search in the charged documents for certain
types of information that had been sold in the past; this would then tell him that the information
in question here had similar value. Although he could have, Mr. Lewis did not actually go back
to information on prior sales to compare the actual content of the information to ensure its
similarity and account for any of a myriad of factors which would alter its value open
source reporting, the passage of time, etc.). Nor did Mr. Lewis take into account transactions
that had not ripened into sales of information. In other words, Mr. Lewis? ?valuation?,was
completely devoid of any context, veri?cation, or any other hallmarks of an expert opinion.
Accordingly, the Government has not introduced any evidence which, together with all
reasonable inferences could establish that any information in this case had a value of over $1000.

CONCLUSION

7 The Defense submits that the relevant thieves? market is one where the seller is an actual thief, and not a double-
agent masquerading as a thief who is selling, in part, a continuing relationship with a buyer.

17



35749

52. For the reasons detailed herein, the Defense requests this Court enter a ?nding of not guilty
under R.C.M. 917 for Speci?cation 4, 6, 8, and 12 of Charge II.

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel

18

35750

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE MOTION FOR
v. DIRECTED VERDICT:

ARTICLE 104
MANNING, Bradle E., PFC
U.S. Army,
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 4 July 2013
Fort Myer, VA 22211

RELIEF SOUGHT

1. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 9 1 requests this Court to enter a ?nding of not guilty as to
the Speci?cation of Charge 1.

STANDARD

2. A motion for a ?nding of not guilty should be granted when, viewing the evidence in the light
most favorable to the prosecution, there is an ?absence of some evidence which, together with all
reasonable inferences and applicable presumptions, could reasonably tend to establish every
essential element of an offense charged.? R.C.M. 9l7(d).

ARGUMENT

3. In the Court?s ruling on the Defense motion to dismiss the Article 104 offense for failure to
state an of?ce, the Court indicated:

If. at trial, the Government 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. Appellate Exhibit 81.

The Government has failed to adduce evidence which, together with all reasonable inferences
and applicable prcsumptions, shows that PFC Manning had ?actual knowledge? that by giving
information to WikiLeaks, he was giving information to an enemy of the United States.
Accordingly, the Defense requests that the Court grant this R.C.M. 917 motion for Charge 1.

4. According to the Court's instructions:

APPELLATE EXHIBIT 5 ml
PAGE REFER
PAGE PAGES



35751

?Knowingly? requires actual knowledge by the accused that by giving the
intelligence to the 3rd party or intermediary or in some other indirect way, that he
was actually giving intelligence to the enemy through this indirect means. This
offense requires that the accused had a general evil intent in that the accused had
to know he was dealing, directly or indirectly, with an enemy of the United States.
?Knowingly? means to act voluntarily or deliberately. A person cannot violate
Article 104 by committing an act inadvertently, accidentally, or negligently that
has the effect of aiding the enemy.

The Govemment?s evidence fails to shows in any way that by giving information to WikiLeaks,
PFC Manning had actual knowledge that he was giving information to the enemy.

5. The Government has introduced evidence that in his training, PFC Manning was told that the
enemy uses the internet generally. The Government has not proffered any evidence, however,
which shows that in his training, PFC Manning was told that a particular enemy looks at or uses
the WikiLeaks website. In fact, Mr. Moul, who trained PFC Manning, testi?ed that he had never
heard of WikiLeaks prior to PFC Manning?s arrest in this case. See Testimony of Mr. Moul.
CPT Fulton testified that the only types of websites that intelligence were warned about
were social networking sites such as acebook. See Testimony of CPT Fulton. None of the
evidence elicited by the Government regarding PFC Manning?s training, construed in the light
most favorable to the Government, shows that PFC Manning had the actual knowledge that is
required under Article 104. Similarly, the Government has introduced no evidence to suggest
that PFC Manning was somehow independently aware that the enemy uses WikiLeaks. Mr.
Johnson testified that his forensic investigation of PFC Manning?s computer revealed no
searches for the enemy, anything related to terrorism, or anything remotely anti?American. See
Testimony of Mr. Johnson.

6. The Government also attempts to show that PFC Manning had actual knowledge that the
enemy uses WikiLeaks by evidence and testimony related to the Army Counter?Intelligence
Center (ACIC) report charged in Speci?cation 15 of Charge II. The Government has adduced
forensic evidence that PFC Manning?s computer accessed the report multiple times between
December of 2009 and April of 2010. The Government seeks to use the ACIC report to show
that PFC Manning had actual knowledge that the enemy uses WikiLeaks and therefore, that by
giving information to WikiLeaks, PFC Manning was giving information to the enemy. The
Govemment?s evidence, taken in the light most favorable to the Government cannot support a
?nding that PFC Manning had actual knowledge that the enemy uses WikiLeaks.

7. First, the title of the report is ?Wikileaks.org An Online Reference to Foreign Intelligence
Services, Insurgents, or Terrorist Groups?? The question mark obviously denotes that the
question is something that the U.S. government does not have an answer to. If the government
had actual knowledge that the enemy uses WikiLeaks, then the title of the report would be
?Wikileaks.org An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist
Groups.? without a question mark. If the U.S. government does not have actual knowledge of
the enemy?s use of the WikiLeaks website, then neither can PFC Manning.



8. Second, the Government has introduced evidence that the report says that ?In addition, it must
also be presumed that foreign adversaries will review and assess any sensitive or classi?ed
information posted to the Wikileaks.org Web site.? See ACIC Report. The very nature of a
presumption is that a person does not know whether something is true or not true. The fact that
PFC Manning should have presumed something may go to whether he was negligent or reckless,
but it does not go to whether he had actual knowledge under Article 104.

9. Third, the Govemment?s focus on one small section ignores the plain limitation laid out in the
ACIC document under the section entitled ?lntelligence Gaps.? In the ACIC document, the
author readily admits that an intelligence gap is ?Will the Wikileaks.org Web site be used by

FIS S, foreign military services, foreign insurgents, or terrorist groups to collect sensitive or
classi?ed US army information posted to the Wikileaks.org Web site?? Ms. Glenn con?rmed
that an intelligence gap is something that is not able to be con?rmed, or it would not be listed in
that section. See Testimony of Ms. Glenn. Additionally, multiple unit witnesses testi?ed during
the Govemment?s case that an intelligence gap is something that we do not have actual
knowledge of If one had actual knowledge of something, it would not be called an intelligence

gap.

10. The Government also introduced testimony from Mr. Lamo where the Government sought to
introduce various of PFC Manning?s admissions. During cross-examination of this Government
witness, the Defense elicited (and the Government did not dispute) evidence as to PFC
Manning?s state of mind. At one point, Mr. Lamo asked PFC Manning why he did not sell the
information to a foreign government and ?get rich off 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 . . . infonnation
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 Prosecution Exhibit 30. PFC Manning?s state of mind and professed motive for releasing the
charged documents to WikiLeaks belies any argument that PFC Manning had actual knowledge
that by giving information to WikiLeaks, he was giving information to the enemy. Indeed, PFC
Manning refused to sell the information to another country, even though he could have
?nancially bene?tted by doing so, because he did not want an enemy of the United States to
??take advantage of the Id. The chat logs show that since PFC Manning did not
intend to aid the enemy, he also did not knowingly give intelligence information to the enemy.

11. In the end, the Govemment?s evidence indicated that PFC Manning spoke, via computer,
with two witnesses about the charged offenses as he was committing them or immediately after
the fact. During these times, PFC Manning never once mentioned AQ, AQAP, UBL, Adam
Gadahn, or any potential enemy that has ever, at any time, been identi?ed by the Government.
Based upon the chat logs with Mr. Lamo, it is clear that PFC Manning?s focus was on getting
certain information to the American public in order to hopefully spark change and reform. There
is, simply put, no evidence before this Court that PFC Manning ever possessed the ?general evil
intent? that must be shown in order to sustain a ?nding of guilt under Article 104. At most, the





35753

Government has introduced evidence which might establish that PFC Manning ?inadvertently,
accidentally, or negligently? gave intelligence to the enemy. This is not sufficient to prove an
Article 104 offense. See United States v. Olson, 20 C.M.R. 461, 464 (A.B.R. 1955) (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 Accordingly, the Article 104
offense must be dismissed.

CONCLUSION
12. In light of the foregoing, the Defense requests this Court grant the requested R.C.M. 917
motion for Charge I (the Article 104 offense).

Respectfully submitted,


DAVID EDWARD COOMBS
Civilian Defense Counsel

35754

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE MOTION FOR
v. DIRECTED VERDICT:

18 U.S.C. 1030 OFFENSE
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: 4 July 2013



RELIEF SOUGHT

l. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 9 requests this Court to enter a ?nding of not guilty for
Specification [3 of Charge 11.

STANDARD

2. A motion for a ?nding of not guilty should be granted when, viewing the evidence in the light
most favorable to the prosecution, there is an ?absence of some evidence which, together with all
reasonable inferences and applicable presumptions, could reasonably tend to establish every
essential element of an offense charged.? R.C.M. 9l7(d).

ARGUMENT

A. The Government?s Theory is Legally De?cient

3. During the motions phase of this case, the Defense brought two separate motions to dismiss
the 18 U.S.C. offenses based upon the Government?s failure to state an offense. The
Court ruled, in response to the first motion, that the Court would adopt the narrow view of
United States v. Nasal, 676 F.3d 854 (9th Cir. 2012) such that the Government would not be able
to bootstrap use restrictions (improper use of infonnation) into access restrictions for the
purposes of 18 U.S.C. ?lO30. The Government thereafter shifted its theory of criminality to

- focus on PFC Manning?s use of an apparently unauthorized program to ground an offense under
section 1030. The Court, not having the benefit of evidence on this point, did not dismiss the
offenses and reiterated that the military justice system is a notice pleading jurisdiction and that
the charge was suf?cient to state an offense.

I

4. Now that the Court has had the full benefit of all the evidence on the issue of access to the
NetCentric Diplomacy database, the Defense moves this Court to dismiss the charge under
R.C.M. 917.

2 ,5

PAGE 01-?

ima-



35755

5. The Govemment?s theory of liability is the following:

In order for a person to access or obtain a diplomatic cable on the NCD website,
the person has to individually ?click? or ?save? the diplomatic cable after
searching for the cable or navigating to the cable in some manner. As the
evidence will show, the accused bypassed the ordinary method of accessing
information by adding unauthorized software to his SIPRNET computer and using
that software to rapidly harvest or data-mine the information. Wget was not
available on the computers used by the accused or authorized as a tool to
download the information. Thus, the accused violated a restriction on access to
the information - he bypassed a code?based restriction - by using Wget to obtain
the cables in batches.

See Appellate Exhibit 188 at p. 5.

6. The Government has introduced evidence that PFC Manning used the program Wget to
download the diplomatic cables. However, PFC Manning?s purported use of this allegedly
unauthorized program] to download the information speci?ed in Speci?cation 13 of Charge II
does not change and cannot change the only fact that matters in the ?exceeds authorized access?
inquiry: PFC Manning was authorized to access each and every piece of information he
accessed. The Government has not introduced any evidence to suggest that PFC Manning was
not permitted to view the cables in question. The Government has not introduced any evidence
to suggest that PFC Manning was not permitted to download the cables in question. The
Government simply asserts that PFC Manning was not permitted to download them using a
certain program, Wget.

7. The Government has not introduced evidence that Wget in some way expanded the access
that PFC Manning had, such that it gave him access to information that he otherwise would not
have had access to. The Government?s witness, Agent Shaver, testi?ed that: Wget does not give
a user access to information that they otherwise would not have access to; Wget would not allow
a user to grab information that they would not normally be able to see; Wget would not allow the
user to circumvent any sort of restrictions that the Net-Centric Diplomacy database may place on
the user; and Wget would not give a user any more access than they would have normally. See
Testimony of Agent Shaver. The Government has thus not introduced evidence that PFC
Manning by-passed any restrictions on access that would give PFC Manning access to
information that he otherwise would not have had access to. All the Government has to hang its
hat on is that PFC Manning used allegedly ?unauthorized software? ?as de?ned by an AUP that
the Government could not even produce?in downloading the cables. This does not come close
to establishing ?exceeds authorized access? within the meaning of 18 U.S.C. ?1030.

8. The Government is simply incorrect in asserting that the use of an unauthorized program to
download information automatically converts what would otherwise be authorized access to that
information into ?exceeding authorized access.? Whether or not PFC Manning used Wget to
download the information he had access to is irrelevant; under the language of Section 1030, as
well as this Court?s ruling and all legal authorities, PFC Manning could not have exceeded his

I The Defense contests that this program was unauthorized, infra at C.

2



35756

authorized access because he was authorized to obtain the information he obtained. That is,
?exceeds authorized access? is not concerned with the manner in which information to which
one has access is downloaded; it is rather concerned with whether the accused was authorized to
obtain or alter the information that was obtained or altered.

9. Section l030(e)(6) de?nes ?exceeds authorized access? as follows: ?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
l8 U.S.C. 103 This de?nition demonstrates that the Computer Fraud and Abuse Act
(CFAA) is concerned with the relationship between the accesser and the information: is the
accesser entitled to obtain or alter the information at issue? In United States v. Nosal, the en
banc Ninth Circuit explicitly tied the concept of ?exceeds authorized access? to the defendant's
authorization to access the particular information at issue: ?exceeds authorized access? would
apply to inside hackers (individuals whose initial access to a computer is authorized but who
access unauthorized information or files)?? 676 F.3d 854, 858 (9th Cir. 2012) (en banc) (second
emphasis supplied); see also Appellate Exhibit at 7 (?Nasal 11] defines ?exceeds
authorized access? to apply to inside hackers or individuals whose initial access to a computer is
authorized but who accesses unauthorized information or files.? (emphasis in original)).

Nothing in the discussion of the narrow interpretation of ?exceeds authorized access? in Nosal
gives any indication that the manner in which a person downloads information has any bearing
whatsoever on whether the person is authorized to access that information.

10. In this case, the Government does not dispute that PFC Manning was entitled to access the
information and has offered no proof that PFC Manning was not authorized to access the cables.
Similarly, the Government does not dispute that PFC Manning was entitled to download the
information and has offered no proof that PFC Manning was not authorized to download the
cables. The Govemment?s Wget theory-?? that PFC Manning exceeded authorized access by
using an unauthorized program to download the information?erroneously focuses on the
manner in which PFC Manning downloaded the infonnation. But the manner in which he
downloaded the information is beside the point, since at all times he remained entitled to access
the information in question.

11. The ridiculousness of the Govemment?s theory is highlighted when one really distills what
the Government is saying. If PFC Manning had downloaded the cables one-by-one (or with a
program like Excel which was in the baseline package for the DCGS-A machines), then PFC
Manning would not be facing a ten-year prison sentence under 18 U.S.C. ?l030. However,
because he is alleged to have used a program not technically approved on his DCGS-A machine,
he is facing a ten-year prison sentence. A decade in jail cannot turn on what programs the Army
happens to put on its ?authorized software? list. While the Defense concedes that releasing the
diplomatic cables was a criminal offense?one for which PFC Manning has accepted
responsibility?it is not, under any stretch of the imagination, a computer crime within any
rational meaning of 18 U.S.C. ?l030.

12. If computer crimes will now turn on whether an accused uses unauthorized hardware or
software to look at or download information that they otherwise have access to, this would be an
extremely dangerous (not to mention unconstitutional) application of the statute. This is
particularly so considering that 18 U.S.C. criminalizes ?exceeding authorized



35757

access? and ?thereby obtain[ing] infonnation from any protected computer.? In other words,
simply ?exceeding authorized access? and obtaining any information from a government
computer would subject an accused to imprisonment. No particular type of information is
required to have been accessed, nor does the information have to have been transmitted. It is
simply ?getting? the information by means of exceeding authorized access which is criminal.
Consider what this would mean in practice if one could exceed authorized access simply by
using unapproved hardware or software to view, download or print information that the accessor
is otherwise entitled to view, download or print. A soldier who connected a commercial printer
to a government computer (rather than a govemment-approved printer) would be exceeding
authorized access if he printed any documents. A soldier who used an unapproved storage
device (rather than a govemment-approved storage device) would be guilty of exceeding
authorized access if he saved some documents onto it. A soldier who used the newest
unapproved version of Excel to download information (rather than the government?approved
version of Excel) would be guilty of exceeding authorized access. What most, and certainly
those in PFC Manning?s Brigade, would consider a minor breach of information assurance
protocols would now be a felony.

13. There is absolutely no legal precedent for the Govemment?s argument that the speci?c
program with which information is downloaded can detennine whether a person ?exceeds
authorized access? within the meaning of 18 U.S.C. ?lO30. A survey of the case law reveals that
no criminal prosecutions have been maintained based on a theory in the nature of that advanced
by the Government here that the accessor was permitted to access the information, was
permitted to download the information, but was not permitted to download the information using
a certain program).

14. One civil case, however, made allegations very similar to those in the instant case. In
Wentworth?Douglass Hospital v. Young Novis Professional Association, 2012 WL 2522963
(D.N.H.), the plaintiff hospital alleged that certain doctors violated 18 U.S.C. on the basis
that they downloaded information that they were otherwise entitled to access onto
?extraordinarily large? unauthorized storage devices. The plaintiff pointed to the equivalent of
the hospital?s Acceptable Use Policy (WDH Policy Document IM-O9) to show that the use of
unauthorized storage devices to download information that one had authorized access to was
prohibited by 18 U.S.C. ?l 030. The complaint laid out the relevant provisions of the hospital?s
computer policy (similar to the Am1y?s policy) as well as the plaintiffs theory that the use of
unauthorized hardware rendered the defendant?s access to information unauthorized:

20. Pursuant to IM-O9, Attachment 1, Section (?Electronic Information?):

4. No external hardware will be brought in and connected into the hospital
information network without the approval of the Information Systems
Department.

5. No software from external or unauthorized sources will be loaded on
hospital computers without the approval of Information Systems. The
hospital retains the right to remove any unauthorized or unlicensed

35758

software from any hospital computers. Any person found loading or using
unapproved software will be considered in breach of this policy.

43. Between February 1, 2010 and February 28, 2010, removable storage devices
or external hardware were connected to PY001, PY002 and the HP Laptop. Late
on February 28, 2010, the last day when Dr. Moore and Dr. Littell had access to
the desk top computers and laptop, extraordinarily large removable storage
devices were attached to each of PY001 PY002 and the HP Laptop.

72. Defendants intentionally accessed computers without authorization or
exceeded authorized access, and thereby obtained information from a protected
computer in that Defendants, without the prior authorization and approval of the
WDH Information Systems Department and in violation of IM-09, connected
removable storage devices or external hardware to PY001, PY002 and the HP
laptop computer, and obtained or altered information from WDH computers
owned by WDH that Defendants were not entitled to obtain or alter.

See 2010 WL 4786559 (D.N.H.). In short, the plaintiff hospital alleged that the defendant
doctors exceeded their authorized access under 18 U.S.C. ?1030 because they downloaded
information onto ?extraordinarily large? removable storages devices or external hardware that
was not authorized under the governing computer policy. Notably, the plaintiff did not allege
that the defendants were not permitted to access the information in question or were not
permitted to download the information in question. The plaintiff simply alleged that accessing
information in this particular manner?i.e. by downloading that information onto
?extraordinarily large? removable storage devices that were not authorized?violated 18 U.S.C.
?l030. Thus, the allegations in Wentworth-Douglass mirror those in the instant case. In neither
case is it disputed that the accessor of the information had permission to access or download the
information. In both cases, the issue is whether the accessor had permission to download
information in a particular manner through an unauthorized storage device or through an
unauthorized program).

15. The court in Wentworth-Douglass framed the issue as follows:

Mirroring the language of the CFAA, count one of the amended complaint alleges
that ?Defendants intentionally accessed computers without authorization or
exceeded authorized access, and thereby obtained information from a protected
computer.? Amended Complaint (document no. 68) at para. 82. But, in
elaborating on that claim, the hospital says: Count I [of the amended complaint]
alleges the Defendants violated [18 U.S.C. l030(a)(2)(C) because, without the
prior authorization and approval of the WDH Information Systems Department
and in violation of the they connected removable storage devices or
external hardware to hospital computers and obtained or altered information from
WDH computers owned by WDH that they were not entitled to obtain or alter.



Plaintiffs Motion for Summary Judgment (document no. 81-1) at 13 (emphasis
supplied).

With respect to Dr. Cheryl Moore and Dr. Littell, the issue presented is whether
they can be liable under section l030(a)(2)(C) for having violated the hospital?s
computer use policy when they allegedly connected removable storage devices to
hospital computers and then downloaded and/or copied data that they were
otherwise authorized to access.

Wentworth-Douglass Hospital v. Young Novis Professional Association, 2012 WL 2522963,
*3 (D.N.H.). The court held that the defendants could not be liable under 18 U.S.C ?1030 when
they downloaded/copied data that they were otherwise authorized to access_onto unauthorized
storage devices. Accordingly, the court entered a directed verdict for the defendants.

16. The court saw the relevant inquiry as whether or not the defendants were authorized to
access the ?hospital?s computer and the data at issue,? not whether the defendants were
authorized to download the information onto unauthorized storage devices. Id. at The
plaintiff tried to characterize the hospital?s computer policy prohibiting unauthorized hardware
(the equivalent of the Army?s AUP) as being an ?access restriction? and not a use restriction.
The court outright rejected this argument:

The court disagrees. Of course, the distinction between an employer-imposed
?use restriction? and an ?access restriction? may sometimes be difficult to discern,
since both emanate from policy decisions made by the employer?decisions about
who should have what degree of access to the employer?s computers and stored
data, and, once given such access, the varying uses to which each employee may
legitimately put those computers and the data stored on them. But, simply
denominating limitations as ?access restrictions? does not convert what is
otherwise a use policy into an access restriction. Here, the hospital?s policy
prohibiting employees from accessing company data for the purpose of copying it
to an external storage device is not an ?access? restriction; it is a limitation on the
use to which an employee may put data that he or she is otherwise authorized to
access. An employee who is given access to hospital data need not ?hack? the
hospital?s computers or circumvent any technological access barriers in order to
impermissibly copy that data onto an external storage device. The offending
conduct in such a case is misuse of data the employee was authorized to access,
not an unauthorized access of protected computers and data.

Id. So too is the case here. In fact, the Wentworth~Douglass court?s rejection of the possibility
of civil liability under section 1030 in circumstances very similar to those alleged here should
sound a note of extreme caution to a criminal court. If the ?unauthorized hardware/software?
theory is not sufficient to ground civil liability, surely it is not sufficient to ground criminal
liability. And indeed, there is no criminal case that has accepted the narrow view of the
Computer Fraud and Abuse Act the Nosal view) where a theory like the Govemment?s



35760

(accused had access to download, but didn?t have permission to download with a particular
program) has even been advanced, much less where the theory has succeeded. Thus, under the
authority of Werztworth-Douglass, the only case to make allegations similar to those in the
instant case, PFC Manning cannot be found criminally liable under 18 U.S.C. ?l030 for violating
the terms of the Acceptable Use Policy when he was permitted to access the information in
question and was permitted to download the information in question.

17. Additional authority that a violation of a computer use policy cannot turn what is otherwise
authorized access into ?exceeds authorized access? is found in the recent Fourth Circuit decision
in WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012). In that case, the
plaintiffs advanced the argument that the defendants exceeded authorized access within the
meaning of 18 U.S.C. ?l030 because ?under [the employer?s] policies they were not
permitted to download confidential and proprietary infonnation to a personal computer.? Id. at
202. The district court held that the complaint failed to state an offense because ?Appellees?
alleged conduct??the violation of policies regarding the use and downloading of con?dential
information?did not contravene any of these [section 1030] provisions.? Id. On appeal, the
Fourth Circuit affirmed the district court?s judgment:

WEC founds its CFAA claim on Miller?s and Kelley?s violations of its policies
?prohibiting the use of any confidential information and trade secrets unless
authorized? and prohibiting the ?download[ing] [of] confidential and proprietary
information to a personal computer.? Notably, however, WEC fails to allege that
Miller and Kelley accessed a computer or information on a computer without
authorization. Indeed, complaint belies such a conclusion because it
states that Miller ?had access to intranet and computer servers? and ?to
numerous confidential and trade secret documents stored on these computer
servers, including pricing, terms, pending projects and the technical
capabilities of Thus, we agree with the district court that although Miller
and Kelley may have misappropriated information, they did not access a computer
without authorization or exceed their authorized access.

Id. at 206-207.

18. The Fourth Circuit specifically held that the manner in which a defendant accessed
information (in particular, by the unauthorized downloading onto a personal computer) could not
ground civil liability, much less criminal liability, under 18 U.S.C. ?1030. In this respect, it
stated:

Nevertheless, because WEC alleges that Miller and Kelley obtained information
by downloading it to a personal computer in violation of company policy, we go a
step further. Although we believe that interpreting ?so? as ?in that manner? fails
to subject an employee to liability for violating a use policy, we nonetheless
decline to adopt the Nasal panel?s interpretation of the conjunction. The
interpretation is certainly plausible, but it is not ?clearly warranted by the text."
Indeed, Congress may have intended ?so? to mean ?in that manner,? but it ?could
just as well have included ?so? as a connector or for emphasis.? Thus, faced with
the option of two interpretations, we yield to the rule of lenity and choose the

7

35761

more obliging route. ?[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.?

Here, Congress has not clearly criminalized obtaining or altering information ?in
a manner? that is not authorized. Rather, it has simply criminalized obtaining or
altering information that an individual lacked authorization to obtain or alter.
And lest we appear to be needlessly splitting hairs, we maintain that the Nosal
panel?s interpretation would indeed be a harsher approach. For example, such an
interpretation would impute liability to an employee who with commendable
intentions disregards his employer?s policy against download information to a
personal computer so that he can work at home and make headway in meeting his
employer?s goals. Such an employee has authorization to obtain and alter the
information that he downloaded. Moreover, he has no intent to defraud his
employer. But under the Nosal panel?s approach, because he obtained
information ?in a manner? that was not authorized by downloading it to a
personal computer), he nevertheless would be liable under the CFAA. See
Believing that Congress did not clearly intend to criminalize
such behavior, we decline to interpret ?so? as ?in that manner.?

Id. at 205-206. Notably, the Fourth Circuit?s passage referred to the Ninth Circuit panel?s
decision on the word ?so? which was ultimately overruled en banc in Nosal, 676 F.3d 854 (9th
Cir. 2012). Accordingly, and in light of the en banc decision in Nosal, the reasoning of the
Fourth Circuit is even more persuasive that the manner in which information is downloaded is
irrelevant to the ?exceeds authorized access? inquiry.

19. In short, the Government has provided no evidence that PFC Manning was not authorized to
access each and every piece of information covered in Speci?cation 13 of Charge 11. It instead
argues that his use of Wget to download the information speci?ed in Speci?cation 13 renders his
otherwise authorized access to that information an excess of his authorization. Such a theory
?nds no support in Section 1030, its legislative history, and the rulings of this Court and so many
others that have adopted the narrow interpretation of ?exceeds authorized access.? Under that
narrow interpretation of the phrase, the only inquiry is whether the accesser is entitled to obtain
or alter the information at issue; the manner in which that information is downloaded does not
provide an answer to that inquiry. Therefore, since PFC Manning was authorized to access all of
the information covered in Speci?cation 13 of Charge II, PFC Manning must be found not

guilty.

B. The Government Has Not Introduced Evidence that Using Unauthorized Software
was an Access Restriction

20. Even if one accepts that the Government?s theory is not legally de?cient, the Government

has still not established that installing and using unauthorized software was an access restriction.
According to the Government, the prohibition on using unauthorized software generally (but not
Wget speci?cally) is found in the Anny?s Acceptable Use Policy (AUP). If the Army wanted to

35762

create an access restriction, it must do so in a more clear way than burying it in a generic, multi-
page, multi-topic AUP.2 See United States v. Nasal, 676 F.3d 854, 860 Cir. 2012)
(?Signi?cant notice problems arise if we allow criminal liability to turn on the vagaries of private
polices that are opaque, subject to change and seldom

21. Critically, the Government has not even presented the AUP signed by PFC Manning or
anyone in his brigade. Thus, it is impossible to determine exactly what PFC Manning knew or
should have known in terms of limitations on access and/or use.3 Second, to state the
the AUP refers to the Acceptable Use Policy, not the Acceptable Access Policy. This very fact
shows that the policy focuses on use restrictions and not access restrictions. Third, the provision
in the sample AUP regarding unauthorized software states, I will use only authorized
hardware and software I will not install or use any personally owned hardware, software,
shareware, or public domain software.? The fact that the word ?use? appears twice in this
sentence clearly shows that this is a ?use? restriction and not an ?access? restriction.?

22. The Government has provided no evidence to show that the prohibition against unauthorized
software was an access restriction. The Government has called no witness to say that PFC
Manning understood (or that soldiers in general understood) that the use of unauthorized
software was a limitation on computer access, rather than use, and that any exceeding of that
access could result in a felony conviction. Without an understanding that the use of unauthorized
software constituted an access restriction, a soldier (in this case, PFC Manning) could not have
knowingly exceeded authorized access by installing and using such software.

23. Further, the Government has introduced no evidence to show that computer access of
soldiers who used unauthorized software was suspended. The evidence elicited showed that
members of the S-2 section constantly added what would be considered ?unauthorized software?
to their DCGS-A computers. If the adding and using of unauthorized software was an ?access?
restriction, then presumably these soldiers would have had their access circumscribed or
suspended for exceeding their authorized access. The testimony shows otherwise. CPT
Cherepko testified that if he was able to identify the individual who added unauthorized
software, he would ?go to that soldier and explain the reasons why it?s a bad idea." See



2 The Defense adheres to the position that allowing employers, including the Army, to develop contract?based
access restrictions would render 18 U.S.C. ?l030 constitutionally vague and/or overbroad. See United States v.
Drew, 259 F.R.D. 449 (C.D. Cal. 2009). If the Anny could simply make all use restrictions look like access
restrictions by stating ?access to this computer system is conditioned upon a soldier using approved U.S.
Government hardware and software?), this would criminalize a huge swath of conduct that is currently only
punishable as a violation of a regulation. Moreover, to the extent that this Court believes that an AUP may contain
both use and access restrictions, it needs to be clear to soldiers which one is which since an access restriction can
render a soldier liable to imprisonment under 18 U.S.C. ?1030, while a use restriction cannot.

3 The testimony elicited by the Government established that there is a difference between ?unauthorized software?
(which is installed onto computers) and ?executable files? (which are not installed onto the computer but only
require a ?double click?). Wget falls into the latter category. The Government has not provided any evidence that
the AUP signed by PFC Manning even prohibited the use of executable files.

4 No court that has accepted the narrow view of Nasal has found that an Acceptable Use Policy or the like can define
access restrictions, rather than use restrictions. And for good reason. If all that is required to convert what
otherwise is a use restriction into an access restriction is to change the phraseology of the provision, then employees
will face criminal liability for breaches of contract that do not involve exceeding authorized access under any
sensible understanding of the tenn.

35763

Testimony of CPT Cherepko. Communicating that something is a ?bad idea? is very different
than communicating that something is an access restriction that a soldier?s access to a
computer is contingent upon not using unauthorized software). It is clear that the installation and
use of unauthorized software was always treated as a use restriction?and, as described below,
one that was not ever enforced by the brigade.

24. The Government has also failed to introduce any evidence that there were any access
restrictions on the Net-Centric Diplomacy database itself. The Government has not introduced
evidence, for instance, that the Net-Centric Diplomacy database prevented downloading
information using a program like Wget; indeed, the evidence was to the there
were no technical access restrictions on downloading the information or on the manner of
downloading the information. Mr. Wisecarver testi?ed that there were no access restrictions on
the Net-Centric Diplomacy database. See Testimony of Mr. Wisecarver (?But, again,
understanding that NCD was a web?based type of application, so I don?t believe it was limited at
all. If you had access to SIPRNET, you had that secret clearance, you were given authorization
to use SIPRNET, then by default you would have access to Mr. Wisecarver further
testi?ed that there were no individual access or authentication restrictions on the Net-Centric
Diplomacy database and that a user could have multiple cables open at the same time which the
user could download or print simultaneously.

25. Similarly, the Government has not introduced evidence of non-technical barriers on access,
such as a banner on the Net-Centric Diplomacy database that said something to the effect of
?This database must be accessed only with govemment-authorized hardware and software?5 or
?Information in this database may not be downloaded using automated tools.? The banner that
did appear on the Net-Centric Diplomacy database focused on the use of the information; it did
not speak at all to the manner of access. See Testimony of Mr. Wisecarver (stating that the
banner did not specify any restrictions on how information was accessed, or on the manner of
downloading cables; nothing in the warning indicated that a user had to ?click, open, save?); see
also Testimony of COL Miller (stating that the Brigade did not put out any restriction on the
manner of downloading information from the SIPRNET or require that soldiers ?click, open, and
save? information). Accordingly, the Government has not established that anything resembling
what might be considered an access restriction appeared on the Net-Centric Diplomacy database.

C. The Government Has Not Introduced Evidence that PFC Manning Knowingly
Exceeded Authorized Access

26. The Government has presented evidence that Wget was not on the approved list of programs
for the DCGS-A computer used by PFC Manning in downloading the cables. Thus, it argues that
since PFC Manning downloaded information that he was otherwise entitled to download with
?unauthorized software? he thereby exceeded his authorized access within the meaning of 18
U.S.C. ?l030.

5 The Defense submits that this would not actually be an access restriction. It would be a use restriction,
masquerading as an access restriction.

10



27. The Government has not proven that Wget, which is an executable ?le, was ?unauthorized
software? in the particular environment in which PFC Manning worked.6 While it may not have
been of?cially approved for use on the DCGS-A computer, whether or not something is
?authorized? or ?unauthorized? is determined by a lot more than a piece of paper. For instance,
Mr. Weaver, the Information Assurance manager who testi?ed as to the scope and content of
Army Regulation 25-2, was asked whether soldiers were authorized to use games, movies, music
and other executable ?les. In response, he stated ?You want the regulation answer or my
opinion, sir?? See Testimony of Mr. Weaver. The answer and explanation given by Mr. Weaver
demonstrates that there can be a disconnect between what the rules are ?on paper? and what the
rules are in practice. This disconnect is bolstered by the testimony of COL Miller. COL Miller
testi?ed that technically unauthorized media could be approved for morale and welfare purposes.
See Testimony of COL Miller (?Because sometimes these risks the reason given for it?s not
authorized is because there?s a document that says this is not authorized and therefore it?s a risk.
What I always want to get to is why, not the document, but what was the logic behind that being
put in that document so I can get to the root This fact further highlights the distinction
between what the rules were on paper as opposed to what the rules were in practice.

28. The Defense submits that the use of executable ?les was permitted by the S-2 section, and
therefore Wget was not unauthorized. Every unit witness called by the Government testi?ed that
there was music, movies and games on the computers in the T-SCIF (whether on the T-drive or
on the individual computers themselves). See e. g. Testimony of CPT Cherepko; Testimony of
Mr. Maderas; Testimony of CW2 Balonek; Testimony of Ms. Showman; Testimony of COL
Miller. Further testimony of some of these witnesses established that at least some of these
music, movies and games took the form of executable ?les which were run directly from the
desktop.

29. Mr. Maderas testi?ed that PFC Manning added mIRC-chat to his computer and the
computer of others as an executable ?le. mIRC-chat was not a standard program on the DCIGS-
A machines. Mr. Maderas testi?ed that he believed this was permitted and did not think it was a
problem that the mIRC-chat executable ?le was added by PFC Manning rather than Mr.
Millman. See Testimony of Mr. Maderas. Similarly, Ms. Showman also testi?ed that she asked
PFC Mamiing to put mIRC-chat on her computer and that he did. She did not believe that the
adding of mIRC-chat by PFC Manning, as opposed to Mr. Millman, was a violation of the user
agreement.

30. Unit witnesses testi?ed that no soldier was, to their knowledge, ever punished for the
placement or use of unauthorized software on the DCGS-A machines. See e. g. Testimony of Mr.
Maderas. Testimony from CPT Cherepko con?rmed that the command had actual knowledge of
the use of executable ?les on the DCGS-A machines and did not do anything about it. CPT
Cherepko con?rmed that there was a command laxity with regard to the use of executable ?les.

6 Both the Government and Defense elicted testimony that Wget was an executable ?le, meaning that the ?le is not a
program that is ?installed? onto the computer. Instead the program runs from the desktop after double-clicking or
runs from a compact-disc. Executable ?les do not require administrative rights to run. See Testimony of CPT
Cherepko (?There is no installation process. If you have it on a CD or thumb drive or on your desktop you can
simply run it. There?s no administrative rights required?).

11



35765

See Testimony of CPT Cherepko. It is clear that soldiers in the S-2 shop were permitted to add
executable ?les to their computers and did so on a regular basis. It is also clear that the chain of
command knew about this rampant practice and did nothing about it. In short, soldiers in the T-
SCIF were allowed to place executable ?les on their computer, despite the apparent on paper
prohibition against adding ?unauthorized software.? In the S-2 shop, executable ?les were not
considered ?unauthorized software.? Thus, in using an executable ?le, Wget, to download the
cables, PFC Manning did not use ?unauthorized? software. Instead, he used an executable
a practice that had been sanctioned and approved of by the S-2 leadership and the chain of
command.

31. If the Court nonetheless believes that, despite the practice in the S-2 shop, PFC Manning
nonetheless used ?unauthorized software?, the Government has still failed to prove that PFC
Manning knowingly exceeded his authorized access. If the Govemment?s theory of exceeds
authorized access is that PFC Manning used unauthorized software, then he must have knowingly
used unauthorized software. Given the evidence elicited from all the unit witnesses as to what
they believed was permitted and what they believed was not permitted, the Government has not
introduced any evidence that PFC Manning knew he was exceeding his authorized access by
using an executable ?le to download information that he had authorized access to.

32. For instance, CW2 Balonek testi?ed that he did not know whether the use of executable ?les
in the form of games, movies or music was authorized or not. He testi?ed that he believed that
games were allowed, if work was low. He further testi?ed that the rules in garrison were
different than the rules in theater (?different rules for different areas?). See Testimony of CW2
Balonek. Similarly, Mr. Maderas testi?ed that he did not know whether the use of unauthorized
software in the form of games, movies or music was prohibited. In response to the Court?s
question, he said that there was ?silence? on whether this was authorized or not. See Testimony
of Mr. Maderas. Ms. Showman testi?ed that she believed that the S6 approved of music, movies
and games on the DCGS-A computers, or at least she assumed they were authorized since the
command knew about them and did nothing about it. See Testimony of Ms. Showman. It is
clear that, at the very least, the rules of the game in the T-SCIF were unclear as to what was
authorized and what was not. Accordingly, and against this backdrop, there is no evidence that
PFC Manning knew that by using Wget, an executable ?le, he was exceeding authorized access.

33. Importantly, the fact that PFC Manning knew that ultimately transmitting the cables was
wrong does not mean that he knew that his use of the computer in those circumstances was
wrong. See 1996 Legislative History of 18 U.S.C. 1030 (?It is the use of the computer that is
being proscribed, not the unauthorized possession of, access to, or control over the information
added). Section 1030 criminalizes those who ?knowingly? exceed authorized
access. Thus, the Government must show that PFC Manning knew that, by using an executable
?le to download information to which he otherwise had full access, PFC Manning was exceeding
the access he was given. In light of what was permitted at the S-2 shop in terms of the use of
executable ?les, the Government has introduced no evidence that PFC Manning had knowledge
that by using Wget, he was exceeding his authorized access.

D. The Government Has Not Introduced Evidence of Its Own ?Circumvention? Theory

12

35766

34. The Government alleges that PFC Manning?s use of ?unauthorized software??namely
Wget?enabled him to rapidly download information. The fact that Wget rapidly downloads
information has, in turn, led the Government to concoct a ridiculous ?circumvention? argument
whereby it alleges that PFC Manning circumvented the ?normal? way of downloading
information, thus making his action a computer crime within the meaning of 18 U.S.C. ?103 0.7

35. The circumvention argument is a complete red herring.? The Govemment?s theory is that
the use of ?unauthorized software? can convert what is otherwise authorized access into
?exceeds authorized access? within the meaning of section 1030. That unauthorized software in
this case happens to be Wget. However, the unauthorized software could be anything, including
an unapproved (and more recent) version of an approved program. So, for instance, if PFC
Manning had downloaded the cables in an unapproved version of Excel, under the Govemment?s
view, he would still have exceeded his authorized access. Nothing turns on how fast or slow the
download speed was?the crux of the Govemment?s argument is the use of unauthorized
software.

36. The Government now seeks to establish that the ?normal? way of downloading information
would be to manually press ?click, open, and save? and that PFC Manning somehow by-passed
or circumvented the process in contravention of Net-Centric Diplomacy access restrictions. The
Defense believes that the Government has adopted this nomenclature to make it sound more like
what PFC Manning did was hackingg or a computer crime under 18 U.S.C. ?1030?when in
reality it is clear that, at most, it is an Article 92 violation for the use of unauthorized software.

37. The Government has not introduced evidence that ?click, open and save? was the normal
way of downloading information on a computer. Indeed, testified that they
would often export large volumes of information using various tools, to include Excel. They
would do this using an ?export? function, not ?click, open and save.? See e. g. Testimony of CPT
Fulton (explaining that PFC Manning was tasked to export SIGACTS into Excel to create a work
product); Testimony of CW2 Balonek (explaining the use of Excel to import multiple amounts of
points at the same time). Mr. Maderas, who was in PFC Manning?s brigade, testi?ed that he did
not receive any training either at Fort Drum or during the deployment on how one had to
download information from the SIPRNET. He testi?ed that there was no formal guidance or
statement that had to download information in a particular way?speci?cally by using
?click, open, save.? He also testi?ed that often used Excel, which essentially automated
the ?click, open, save? and allowed to export large documents without having
to manually ?click, open and save.? In using Excel, Mr. Maderas testified that the automated

7 This argument is reminiscent of that advanced in Douglass where the plaintiff alleged that the defendant?s
exceeded their authorized access because they used ?extraordinarily large? unauthorized storage devices to
download information. Although not explicitly addressed in the case, the implication appears to be that the
defendants were able to download more information than they otherwise would have been able to owing to the
?extraordinarily large? storage devices (much like the Govemment?s argument that PFC Manning was able to
download much faster than he otherwise would have been able to do).

3 Not surprisingly, there is not one case that the Defense was able to locate where the prosecution advanced a theory
as attenuated as this.

9 Agent Shaver testi?ed that Wget is not synonymous with hacking and isjust a ?tool? that is used in a variety of
contexts. In fact, Agent Shaver testi?ed that he used Wget as part of his investigation to replicate the downloads
that he identi?ed from his forensic examination. See Testimony of Agent Shaver.

l3

35767

process was permitted and there was never anybody who told him he could not use an automated
process. See Testimony of Mr. Maderas. Additionally, COL Miller testi?ed that his Brigade did
not put out any guidance on how soldiers had to download information on the SIPRNET and
stated that there was no ?click, open, save? requirement to download information. See
Testimony of COL Miller.

38. Nor has the Government introduced evidence the Net-Centric Diplomacy database

speci?cally was designed such that a user had to, as an access restriction, use the ?click, open

and save? method of downloading information. Mr. Wisecarver testified that he was not familiar

with the design of Net-Centric Diplomacy (indeed, its design was outsourced to a private

company). Accordingly, the Government has not introduced any evidence that it was a

deliberate design feature of Net-Centric Diplomacy not to have a built?in mechanism for the

automated downloading of cables. The lack of a technical feature to facilitate something is not at

all indicative of an access restriction.]0 Moreover, the fact that Net-Centric Diplomacy was

intended to facilitate ?sharing of information? belies any argument that it was intended to have
some sort of nonsensical ?click, open and save? requirement (as such a requirement would
actually inhibit the sharing of information). See Testimony of Mr. Wisecarver (indicating that I
there were no technical restrictions on access because the primary purpose of Net-Centric

Diplomacy was information sharing).

39. Even if ?click, open and save? were the normal way of downloading information on Net-
Centric diplomacy and even if it were designed as some sort of access restriction, the
Government has not established that the use of Wget by-passed this method. Indeed, Agent
Shaver testi?ed that Wget simply ?automated? the process, it did not change it. See Testimony
of Agent Shaver (noting that Wget did the ?click, open, save? in an automated fashion). And, as
indicated above, Mr. Wisecarver testi?ed that there was no express prohibition on the Net-
Centric Diplomacy database that warned that an automated downloading of information was not
permitted. Any access restrictions, to the extent that they may have existed, did not originate
with the Department of State, but rather were entrusted to the various government agencies that
used Net-Centric Diplomacy. See Testimony of Mr. Wisecarver.

CONCLUSION

40. It is worth noting that the Government has adopted multiple theories of ?exceeds authorized
access? during the course of this proceeding. If the Government cannot even ?gure out what the
objectionable conduct is which constitutes ?exceeding authorized access? how can Soldiers be
expected to know which actions are considered to be a ?computer crime? and which actions are
not? In other words, how could PFC Manning have knowingly exceeded authorized access at the
time of the alleged offense if the Government did not even identify what conduct it considered
criminal until it failed in its ?rst attempt to state an offense? The fact that the Government is

10 Consider, for instance, earlier versions of the Program Microso? Word. Older versions of word did not have a
function for ?pdf??ing documents (thus, one had to manually a document). This was not indicative of a
deliberate design not to permit something?i.e. it was not an access restriction. It was simply a feature that Word
did not at the time possess.

14

35768

clinging to a theory which hinges exclusively on the use of an apparently unauthorized program
to ground imprisomnent for 10 years shows just how weak this charge is.

41. There is not one case?not one?where any court in this country has premised criminal
liability on a theory akin to the one the Government is advancing today. That fact alone speaks
volumes. Consider, at base, what the Government is saying: the accused had authorized access
to the database in question; the accused had authorized access to the information in question; the
accused was entitled to download as much information as he wanted; but the accused used the
wrong program to download that information. It would be a sad day indeed if a decade in jail
could hinge exclusively on what program an accused used to download information he was
otherwise entitled to access and otherwise entitled to download.

42. Accordingly, the Defense requests that this Court grant the R.C.M. 917 motion dismissing
Speci?cation 13 of Charge 11.
Respectfully submitted,

ID EDWARD COOMBS
Civilian Defense Counsel

l5



i 35769
I
IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
I
UNITED STATES
DEFENSE MOTION FOR
v. DIRECTED VERDICT:
SPECIFICATION 16 OF
MANNING, Bradley E., PFC CHARGE II (THE USF-I
U.S. Army, GLOBAL ADDRESS LIST)
- Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 4 July 2013
Fort Myer, VA 22211
RELIEF SOUGHT

l. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 917(a), requests this Court to enter a ?nding of not guilty for
Speci?cation 16 of Charge II.

STANDARD

2. A motion for a ?nding of not guilty should be granted when, viewing the evidence in the light
most favorable to the prosecution, there is an ?absence of some evidence which, together with all
reasonable inferences and applicable presumptions, could reasonably tend to establish every
essential element of an offense charged.? R.C.M. 9l7(d).

ARGUMENT

3. In Speci?cation 16 of Charge II, the Government alleges that PFC Manning stole or
knowingly converted the United States Forces Iraq (USF-I) Microsoft Outlook and SharePoint
Exchange Server Global Address List (GAL). The Government has not presented evidence
which, together with all reasonable inferences and applicable presumptions, could reasonably
tend to establish every essential element of Speci?cation 16 of Charge II.

4. The Defense adopts and incorporates by reference the arguments made in its Motion for
Directed Verdict: Charge 11, Specifications 4, 6, 8, 12 (l 8 U.S.C. ?64l Offenses) (Defense ?64l
Motion).' In particular, the Defense notes that the Government has not charged that PFC
Manning stole or converted ?information? contained within the USF-I GAL or that PFC
Manning stole or converted ?a copy? of the USF-I GAL. This omission is significant both
because it changes the identity of the item allegedly stolen or converted and its valuation. For
the reasons identified the Defense ?64l Motion, and for the additional reasons outlined below,
the Defense requests that this Court enter a finding of not guilty.

It is suggested that the Court read Defense ?641 Motion prior to reading this motionPAGE REF 5; 2
PAGE OF PAUES







5. The Government has adduced forensic evidence that email addresses containing the term
?.mil? were found in the unallocated space in PFC Manning?s personal Macintosh computer. See
Testimony of Mr. Johnson. The Government has provided absolutely no evidence that these
?.mil? addresses were, in fact, the USF-I GAL which it alleges PFC Manning stole or converted.
See Charge Sheet (?In that Private First Class Bradley E. Manning,

U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 11
May 2010 and on or about 27 May 2010, steal, purloin, or knowingly convert another, a record or thing of value of the United States or of a department or agency
thereof, to wit: the United States Forces - Iraq Microsoft Outlook SharePoint Exchange Server
global address list belonging to the United States government, of a value of more than $1,000, in
violation of 18 U.S. Code Section 641, such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring discredit upon the armed forces?)
(emphasis added).

6. The Government called no witnesses to testify that they compared the addresses found in the
unallocated space of PFC Manning?s computer to the USF-I GAL as it existed on a certain date.
See Stipulation of Expected Testimony of SA Williamson .. revealed a large text ?le that
appeared to be an extract of a Microsoft Exchange (emphasis added); did not contact
any individual who could have given me the actual Iraq GAL, nor did I compare the data in the
files recovered from the above ?les with the actual Iraq Without any such evidence, the
Government has introduced no evidence that would tend to establish that PFC Manning stole or
converted the USF-I GAL.

7. More importantly, the Govemment?s own witness testified that the USF-I GAL contained
160,000 email addresses and that the number of email addresses found in the unallocated space
of PFC Manning?s computer totaled 24,000. See 17 June 2013 Testimony of Chief Nixon.
When Chief Nixon was called to testify a second time, he testi?ed that what he viewed on PFC
Manning?s computer was not the USF-I GAL. See 28 June 2013 Testimony of Chief Nixon.
Instead, Chief Nixon testi?ed that he believed (though did not verify) that the .mil addresses on
PFC Manning?s computer were part of the Division GAL. Id. The testimony from Chief Nixon
de?nitively proves that whatever was on PFC Manning?s computer, it was not the USF-I GAL.

8. Perhaps the Government intends to argue that PFC Manning stole or converted part of the
USF-I GAL or that PFC Manning stole or converted the Division GAL. However, the
Government has not charged PFC Manning with stealing or converting part of the USF-I GAL or
with stealing or converting the Division it has charged him with stealing the USF-I GAL
itself. See Charge Sheet. Stealing or converting the USF-I GAL and stealing or converting the
Division GAL are two different offenses, both in terms of the identity of the item actually stolen
or converted and its valuation. See United States v. Wilkins, 1973 WL 14267, *639 (ACMR
1972) (evidence of theft of wallet did not establish that the wallet?s contents were $75.00 as
charged; a variance was not permitted since this would change the ?nature of the offense
charged?); United States v. Marshall, No. 08-0779 (C.A.A.F. 2009) (escaping from the custody
of one SSG Fleming was a different offense than escaping from the custody of CPT Kreitman).
Accordingly, since the Govemment?s own evidence de?nitively shows that what was on PFC
Manning?s computer was not the USF-I GAL as it existed at the time of the alleged offense, the



35771

Government has failed to introduce any evidence that PFC Manning stole or converted the USF-I
GAL.

9. Further, the only evidence adduced as to PFC Manning?s stealing or converting of what
?looks like? the USF-I GAL2 is that evidence of ?.mil? email addresses were found on the
unallocated space on PFC Manning?s computer. The Government, through its forensic experts,
has established that unallocated space means, in laymen?s terms, deleted space on the computer.
Mr. Johnson testi?ed that most likely these email addresses were something that the user put on
the computer and then subsequently deleted. See Testimony of Mr. Johnson. In other words, to
the extent that a part of a GAL?(Brigade, Division, or USF-I) may have been located on PFC
Manning?s computer, the Govemment?s proof shows that it was deleted.

10. The Government has not adduced any evidence that the .mil addresses on the
unallocated/deleted space on PFC Manning?s computer were transmitted to anyone, much less
anyone not authorized to receive it. In particular, the Government has not presented any
evidence that the .mil addresses were transmitted by PFC Manning to WikiLeaks. The
Government has also not adduced any evidence that WikiLeaks published any of the .mil
addresses.

11. The Government has not adduced any evidence that PFC Manning was not permitted to look
at, save, or download the .mil addresses. The Government has not established that there was any
prohibition placed on PFC Manning, or any other individual, on accessing or downloading the
.mil addresses. Indeed, the Govemment?s own witnesses testified that there was no rule or
directive stating that soldiers were not permitted to access or download .mil addresses from any
GAL. See Testimony of CW4 Rouillard. Similarly, CW2 Balonek testi?ed that there was no
prohibition against downloading .mil addresses from any GAL. As well, in his Stipulation of
Expected Testimony, SA Williamson stated, ?The warning banner and legal notice did not
explicitly prohibit the downloading of email addresses. I am not aware of any restriction or
guidance that precludes one from downloading email addresses from Outlook.? See Stipulation
of Expected Testimony of SA Williamson. The Government has therefore not established that,
to the extent that a GAL (not the USF-I GAL) was at some point in time in PFC Manning?s
possession, such possession was somehow ?wrongful.? See Appellate Exhibit 410 (?To ?steal?
means to wrongfully take money or property belonging to the United States government with the
intent to deprive the owner of the use and bene?t temporarily or permanently. ?Wrongful?
means without legal justi?cation or excuse.).

12. The Government has not adduced any evidence that, to the extent that PFC Manning may
have downloaded a GAL, he acted ?with the intent to deprive the government of the use and
benefit of the records.? See Appellate Exhibit 410. The fact that .mil addresses were found in
the unallocated space the fact that the .mil addresses were deleted) and there is no evidence
that the .mil addresses were ever transmitted to anyone demonstrates a lack of intent to deprive
the government of the use and_bene?t of the records.

2 But, as established above, could not be the actual USF-I GAL because there were far too few email addresses on
PFC Manning?s computer for it to be the USF-I GAL.

35772

13. The Government has not adduced evidence that, to the extent that PFC Marming may have
downloaded and saved .mil addresses, that such actions constitute ?stealing? or ?converting? of
the USF-I GAL within the meaning of 18 U.S.C. ?64l.

14. Stealing means ?to wrongfully take money or property belonging to the United States
government with the intent to deprive the owner of the use and bene?t temporarily or
permanently.? ?Wrongful? is defined as ?without legal justification or excuse.? See Appellate
Exhibit 410. As discussed above, the Government has provided no evidence that PFC Manning
?wrongfully? possessed the .mil addresses. Further, the Government has adduced no evidence
that the government was deprived of the use or bene?t of the .mil addresses. For instance, the
Government has adduced no evidence that PFC Manning?s alleged actions in downloading the
.mi1 addresses caused the .mil addresses to not be accessible to others or that the government was
no longer able to use the .mil addresses. CW4 Rouillard testi?ed that there was no impact on
U.S. government resources by the downloading of the .mil addresses. See Testimony of CW4
Rouillard. CW4 Nixon testi?ed that the USF-I GAL was always operational, there were never
any problems with it caused by PFC Manning?s alleged downloading of .mil addresses. See 17
June 2013 and 28 June 2013 Testimony of CW4 Nixon. CW4 Nixon also testi?ed that there
were never any instructions issued by the U.S. government not to use the USF-I GAL or any
portion thereof. Id.

15. Similarly, the Government has not introduced any evidence that PFC Manning wrongfully
converted the USFsomeone else. As stated in the
Appellate Exhibit 410, ?Conversion may include the misuse or abuse of property. It may reach
use in an unauthorized manner or to an unauthorized extent of property placed in one?s custody
for limited use. Not all misuse of government property is a conversion. The misuse must
seriously and substantially interfere with the United States govemment?s property rights.? See
Appellate Exhibit 410. In United States v. Collins, 56 F.3d 1416 (D.C. Cir. 1995) (per curiam),
the court explained that ?[t]he cornerstone of conversion is the unauthorized exercise of control
over property in such a manner that serious interference with ownership rights occurs.? 56 F.3d
at 1420 (emphasis in original). Collins involved a Section 641 prosecution of a technical analyst
at the Defense Intelligence Agency who used the agency?s classified computer system to create
and maintain hundreds of documents relating to the analyst?s ballroom dance activities. Id. at
1418. In the Section 641 prosecution, the Government alleged that the defendant converted,
among other things, the agency?s computer time and storage space.3 Id. The court held that
there was insuf?cient evidence to support the charge relating to conversion of computer time and
storage because the Government did not prove that the defendant?s use of the system for non-
work related tasks seriously interfered with the Government?s property rights in that system:

[T]he government did not provide a shred of evidence in the case at bar that
[defendant] seriously interfered with the govemment?s ownership rights in its
computer system. While [defendant] concedes he typed in data and stored
information on the computer regarding his personal activities, no evidence exists
that such conduct prevented him or others from performing their of?cial duties on
the computer. The government did not even attempt to show that [defendant?s]
use of the computer prevented agency personnel from accessing the computer or

3 Notably, the prosecution did not allege that the defendant in that case stole or converted the computer itself.

4

35773

storing information. Thus, [defendant?s] use of the government computer in no
way seriously interfered with the government?s ownership rights.

Id. at 1421. Here, the Government has not introduced evidence that PFC Manning released the
.mil addresses he allegedly possessed to WikiLeaks or to anyone else not authorized to receive it.
The Government has adduced no evidence that, to the extent that PFC Manning may have ever
had possession of the .mil addresses, he did anything with the .mil addresses, much less anything
that seriously and substantially interfered with the United States government?s property interest
in the USF-I GAL. The Government has not introduced evidence, for instance, that a large
number of the ?.mil? addresses on the list received spam or were the subject of phishing scams.
In short, the Government has introduced no evidence that PFC Manning either stole or converted
the USF-I GAL (or any GAL) within the meaning of 18 U.S.C. ?64l.

16. Viewed in the light most favorable to the Government, the evidence could show that PFC
Manning lawfully downloaded .mil addresses from what appears to be the Division GAL and
subsequently deleted the document. This would be equivalent to, say, an attorney downloading
the AKO addresses of other attorneys in the JAG Corps, doing nothing with that information,
and then subsequently deleting that information. The Government?s own witness, CW4
Rouillard, testi?ed that this was perfectly acceptable. See Testimony of CW4 Rouillard. The
information cannot be regarded to have been ?stolen? or ?converted? where the original accessor
had authorization to download the information, did not transmit the information, and
subsequently deleted the information.

17. Further, the Government has introduced no relevant evidence of valuation. It did elicit
general testimony about the potential for spear?shing if email addresses are released, but did not
put a monetary value on this.4 Indeed, it withdrew is proffer of CW4 Rouillard as an expert on
value. At one point in CW4 Rouillard?s testimony, the Government proffered that the ?United
States is not arguing that value is measured in dollar amounts.? Under section 641, the
Government must establish value in dollar amounts. It cannot present generalized assertions that
.mil email addresses have value. It must establish that the particular email addresses that PFC
Manning is alleged to have stolen or converted had a value in excess of $1000 at the time of the
alleged offenses.

18. The Government has not established a legitimate ?cost of production? for the copy of the
email addresses that PFC Manning allegedly downloaded. For the reasons identi?ed in the
Defense?s Motion for a Directed Verdict on the remaining ?641 offenses, it is clear that to the
extent that PFC Marming stole or converted anything, it had to be a copy of a list. Accordingly,
it is a copy of the list that must be valued for the purposes of the ?cost of production? measure of
valuation. See United States v. DiGiglio, 538 F.2d 972 (3rd 1976) (noting that copies made using
government resources, including photocopiers, were ?records? for the purposes of ?64l and that
these copies themselves needed to be valued).

4 Indeed, the Government was correct not to do so, since this is not an acceptable means of valuation. The threat to
cyber-security does not demonstrate the monetary value of an item under any acceptable and recognized theory of
valuation.



19. Nor has the Government established the value of the email addresses on the thieves? market
in May 2009 (the time of the alleged offense). The Government offered Mr. Lewis as an expert
on value of all types of information involved in this case, including the GAL. Mr. Lewis is a
counter-intelligence expert who has no knowledge of, or expertise in, valuing email addresses.
He does not consider himself to be a valuation expert, nor has he ever been asked to value email
addresses before. Up until last week, Mr. Lewis maintained that he had no idea why he was
being called to testify. Mr. Lewis? valuation ?methodology? cannot even be called a
methodology. Mr. Lewis did not do relevant research, consider context, or attempt to verify any
of his opinions. Accordingly, any testimony from Mr. Lewis regarding the value of a GAL
generally does not help establish value of the GAL any more than guessing at the value of the
GAL.

20. In United States v. Wilson, 284 F.2d 407 (4th Cir. 1960), the defendant was charged with the
theft of 72 ri?es at a time when Section 641 only required the property to have value in excess of
$100 for a felony conviction. Id. at 408. Furthermore, the indictment alleged that the value of
the 72 ri?es was $7,500. Id. at 407. The Government, however, offered no evidence at trial on
the value of the ri?es, but the jury still found the defendant guilty on the felony charge. Id. at
408. To reach the conclusion that the ri?es had value in excess of $100, the jury only needed to
infer that each ri?e had a value of at least $1.39. See DiGilio, 538 F.2d at 980-81 (discussing
Wilson). The Fourth Circuit vacated the defendant?s 7 ?/2-year sentence because no evidence of
the value of the ri?es was offered. Wilson, 284 F.2d at 408. The Wilson Court explained its
rationale as follows:

The Government . . . failed to produce any evidence whatsoever as to the value of
the stolen weapons. We are asked to take judicial notice that 72 ri?es are worth
more than $100.00, but we cannot on the basis of anything in the testimony form
a judgment as to value for the purpose of supporting the greater penalty. Nor, in
the absence of any proof of value, could the jury be permitted to speculate on this
point merely from the appearance of the articles. A fact which distinguishes a
violation punishable by imprisonment for not more than one year from a violation
punishable by imprisonment for ten years cannot be permitted to rest upon
conjecture or surmise. In order to sustain the imposition of the higher penalty, it
was as incumbent upon the Government to prove a value in excess of $100.00 as
it was to prove the identity of the defendant as the perpetrator of the crime, or the
ownership of the property.

Id. The Government?s failure to introduce specific evidence on value, rather than generalized
assertions of value, is fatal to its 18 U.S.C. ?64l claim.

21. Finally, the Government has adduced no evidence that PFC Manning?s act of downloading
the .mil addresses and then subsequently deleting it is of such a nature to bring discredit to the
Armed Forces. The Government cannot rely on the act itself to establish the service discrediting
nature of the offense.

35775




CONCLUSION
1
2}7f In light of the foregoing, the Defense requests this Court grant the requested R.C.M. 917
motion for Specification 16 of Charge II.

Respectfully submitted,

Ax?

DA ID EDWARD COOMBS
Civilian Defense Counsel

35776

130705-Government Email (Time t o F i l e 917 Responses).txt
From:
Fein, Ashden MAJ USARMY MDW (US)
Sent:
F r i d a y , J u l y 05, 2013 3:49 PM
To:
L i n d , Denise R COL USARMY (US)
Cc:
'coombs@armycourtmartialdefense.com'; H u r l e y , Thomas F MAJ
USARMY
(US); Tooman, Joshua J CPT USARMY (US); Bennett, J e s s i c e D SSG USARMY
(US); Morrow, JoDean (Joe) I I I CPT USARMY USAMDW (US); Overgaard,
Angel M CPT USARMY (US); Whyte, J Hunter CPT USARMY (US); von E l t e n ,
Alexander S (Alec) CPT USARMY (US); M i t r o k a , K a t h e r i n e F CPT USARMY
(US); Ford, A r t h u r D J r CW2 USARMY (US); USARMY F t McNair mdw Mailbox
MDW Court Reporters 0MB; R a f f e l , Michael J SFC USARMY (US); Moore,
K a t r i n a R MSG USARMY (US)
Subject:

RE: Defense F i l i n g - Government Time t o Respond

Ma'am.
The U n i t e d S t a t e s requests u n t i l COB Thursday, 11 J u l y t o f i l e i t s
responses
t o the Defense's RCM 917 motions.
This request i s based on m u l t i p l e
factors.
The defense f i l e d 44 pages o f motions c o n t a i n i n g many new and o l d
cases t h a t
are b e i n g r e l i e d upon by the defense t o argue t h a t the U n i t e d States
presented
evidence t h a t i s not l e g a l l y s u f f i c i e n t f o r RCM 917 purposes.
These
motions
are t e c h n i c a l l e g a l arguments, thus r e q u i r i n g e x t e n s i v e r e s e a r c h , and
not
arguments focused on mere i n s u f f i c i e n c y o f evidence r e l a t e d t o the
elements.
A l s o , the defense appears t o be r e - l i t i g a t i n g the Court's 18 USC 1030
rulings,
which r e q u i r e more time t o r e s e a r c h these i s s u e s . Not o n l y does the
United
S t a t e s need t o t h o r o u g h l y r e s e a r c h these cases and o t h e r s from a l l the
f i l i n g s , b u t a l s o must o u t l i n e f o r the Court the w i t n e s s t e s t i m o n y and
a p p r o x i m a t e l y 180 p r o s e c u t i o n e x h i b i t s p r e s e n t e d over the p a s t 30
days.
A d d i t i o n a l l y , s i n c e we are pushing f o r w a r d w i t h the defense's case on
Monday
morning, the U n i t e d 2 t a t e s requests the f i l i n g date be COB Thursday,
11 J u l y
t o a l l o w f o r the c o n c u r r e n t p r e p a r a t i o n o f the defense's f i r s t 10
witnesses.
The above request would g i v e the U n i t e d S t a t e s 7 days, i n c l u d i n g today
Page 1

APPELLATE EXHIBIT j 3 2
PAGEREFERENCED:
PAOE_OF
PAGES

35777

130705-Government Email (Time t o F i l e 917 R e s p o n s e s ) . t x t
and t h e
weekend, t o c o n c u r r e n t l y r e s e a r c h and w r i t e our responses, prepare f o r
the
f i r s t 10 defense w i t n e s s e s , and p a r t i c i p a t e i n t h e t r i a l next week.
Thank you.
v7r
MAJ Fein
O r i g i n a l Message
From: L i n d , Denise R COL USARMY (US)
Sent: F r i d a y , J u l y 05, 2013 11:18 AM
To:
'coombs@armycourtmartialdefense.com'
Cc: H u r l e y , Thomas F MAJ USARMY (US); Tooman, Joshua J CPT USARMY
^U2);
Bennett, J e s s i c e D 22G USARMY (US); Morrow, JoDean (Joe) 111 CPT
USARMY USAMDW
(US);
Overgaard, Angel M CPT USARMY (US); Whyte, J Hunter CPT USARMY
(US); von
E l t e n , Alexander S (Alec) CPT USARMY (US); M i t r o k a , K a t h e r i n e F CPT
USARMY
(US);
Ford, A r t h u r D J r CW2 USARMY (US); USARMY F t McNair mdw Mailbox
MDW
Court R e p o r t e r s 0MB; R a f f e l , M i c h a e l J 2FC U2ARMY (U2); Fein, Ashden
MAJ
U2ARMY MDW (U2); Moore, K a t r i n a R MSG USARMY (US)
S u b j e c t : Re: Defense F i l i n g - Government Time t o Respond
Government,
By COB today, advise t h e Court how much time you r e q u e s t t o respond t o
the
Defense motions i n t h e below e m a i l .
D
O r i g i n a l Message
From: David Coombs ^mailto:coombs@armycourtmartialdefense.com^
Sent: Thursday, J u l y 04, 2013 03:37 PM C o o r d i n a t e d U n i v e r s a l Time
To: L i n d , Denise R COL USARMY (US)
Cc: H u r l e y , Thomas F MAJ USARMY (US); Tooman, Joshua J CPT USARMY
^US);
Bennett, J e s s i c e D SSG USARMY (US); Morrow, JoDean
(Joe) i l l CPT
USARMY
USAMDW (US); Overgaard, Angel M CPT USARMY (US); Whyte, J Hunter CPT
USARMY
(US);
von E l t e n , Alexander S (Alec) CPT USARMY (US); M i t r o k a ,
Page 2

35778

130705-Government Email (Time t o F i l e 917 Responses).txt
K a t h e r i n e F CPT
USARMY (US); Ford, A r t h u r D J r CW2 USARMY (US); USARMY F t McNair mdw
Mailbox
MDW Court Reporters 0MB; R a f f e l , Michael J SFC USARMY (US); F e i n ,
Ashden MAJ
USARMY MDW (US); Moore, K a t r i n a R MSG USARMY (US)
S u b j e c t : Defense F i l i n g
Ma^am,
Please f i n d a t t a c h e d t h e f o l l o w i n g R.C.M. 917 motions:
1. Motion f o r
2. Motion f o r
3. Motion f o r
Global
Address L i s t )
4. Motion f o r

D i r e c t e d v e r d i c t : 10^ Offense
D i r e c t e d v e r d i c t : 1030 Offense
D i r e c t e d v e r d i c t : ^41 Offenses ( e x c e p t i n g t h e USF-1
D i r e c t e d v e r d i c t : t h e USF-1

G l o b a l Address L i s t

The Defense asks t h a t you read t h e Motion f o r D i r e c t e d v e r d i c t f o r the
^41
Offenses p r i o r t o r e a d i n g t h e Motion f o r D i r e c t e d v e r d i c t f o r t h e GAL
since
the l a t t e r c r o s s - r e f e r e n c e s t h e former.
vBr
David
David E. Coombs, Esq.
Law O f f i c e o f David E. Coombs
11 South A n g e l l S t r e e t , ^317
Providence, R l 0290^
T o l l Free: 1-800-588-415^
L o c a l : (508) ^89-4^1^
Fax: (508) ^89-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com
^ ^ ^ C o n f i d e n t i a l i t y N o t i c e : This t r a n s m i s s i o n , i n c l u d i n g attachments,
may
c o n t a i n c o n f i d e n t i a l a t t o r n e y - c l i e n t i n f o r m a t i o n and i s i n t e n d e d f o r
the
person(s) o r company named. I f you are not t h e i n t e n d e d r e c i p i e n t ,
please
n o t i f y the sender and d e l e t e a l l c o p i e s . U n a u t h o r i z e d d i s c l o s u r e ,
copying
or use o f t h i s i n f o r m a t i o n may be u n l a w f u l and i s p r o h i b i t e d .
Page 3

130705-Government Email



(Time to File 917 Responses).txt

Page 4

35780

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

Witness List Order
for the Defense
Witnesses
7 July 2013

The Defense hereby submits the following order for the first ten witnesses the Defense
intends to call in the above-captioned court-martial:
1.
2.
3.
4.
5.

CW2 Joshua Ehresman
SGT David Sadtler
CPT Steven Lim
CPT Barclay Keay
Ms. Lauren McNamara

6. Col(r) Morris Davis
7. Mr. Cassius Hall
8. Mr. Charles Ganiel
9. Stipulation - Defense Exhibit B
10. ProfessorYochaiBenkler

DAVID EDWARD COOMBS
Civilian Defense Counsel

APPELLATE EXHIBIT 59^

;^fI™AOEs

35781

UNITEDSTATESOF AMERICA
Government Response
to Defense Motion for
Directed Verdict:
Charge I I , Specifications
4, 6, 8,12, and 16
(18 U.S.C. § 641)

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

11 July 2013
RELIEF SOUGHT

The United States respectfully requests that the Court deny the Defense Motion for
DirectedVerdict: Charge lLSpecifications4, 6, 8,12(hereinafier "Defense 641Motion") and
Defense Motion for DirectedVerdict:Specificationl6ofCharge II (hereinafier "Defense GAL
Motion")(collectively "Defense Motions") because the United States has presented evidence for
each element of each specification. The United States combines its response to the Defense
Motions herein.
BURDEN OFPERSUASION AND BURDEN OFPROOF
"Amotion fbrafinding of not guilty shall be granted only in the absence of some
evidence which, together with all reasonable inferences and applicable presumptions, could
reasonably tend to establish every essential element ofan offense charged." Rule for Courts
Martial (hereinafier "RCM")917(d). "The evidence shall be viewed in the light most favorable
to the prosecution,without an evaluation ofthe credibility ofwitnesses." 7^.
FACTS
The accused is charged with giving intelligence to the enemy,in violation of Articlel04,
Uniform Code ofMilitary .lustice. The accused is also charged with causing intelligence to be
"wrongfully and wantonly'^ published in violation ofArticle 134, UCML eight specifications
alleging misconduct in violation ofl8U.S.C.§793(e), five specifications alleging misconduct in
violationofl8USC§641(hereinafier"§641"),twospecificationsallegingmisconductin
violation o f l 8 U S C § 1030(a)(l),fivespecificationsallegingmisconductin violation of
Article 92 ofthe UCML^^^Charge Sheet.
The accused pleaded guilty by substitutions and exceptions to Specifications 2, 3, 5, 7, 9,
10,13,14andl5ofChargeIL .^^^ Appellate Exhibit(hereinafier"AE")CDXLIV The
accused did not plead guilty ^7^^^^^^^^, to Specifications 4, 6, 8,12, a n d l 6 o f Charge II
(hereinafier"§641specifications").
WITNESSES^VIDENCE
The United States does not request any witnesses be produced for this response. The
United States requests that the Court consider the Charge Sheet, Prosecution Exhibits, testimony,
and the Appellate Exhibits cited herein.

APPELLATE k
PAGE REFE

PAGE,

QP

"BIT ^1!L
PAGES

35782

LEGALAUTHORITY AND ARGUMENT
The United States submitted evidence relevant to the§641specifications that was
admitted. The Defense argues that the United States has failed to satisly the standard set forth in
RCM917(d). The admitted evidence establishesareasonable inference that the accused stole
and convertedthedatabasesandrecordslistedinthe§641specifications The Defense
argumentsthatthe§641specificationsconstittite fatal variances lackmeritbecausetheevidence
proves the contents ofthe databases and the records were stolen or converted. The evidence
does not constituteamaterial variance. Additionally,the Defense had adequate notice and
ability to prepare the accused'sdefense for trial.
I EVIDENCEADM1TTEDATTRIALRELEVANTT0§641SPECIFICATI0NS
A R C M 917Background
shall enterafinding ofnot
"The military judge, on motion by the accused or
guilty of one or more offenses charged afier the evidence on either side is closed and before
findings on the general issue of guih are announced if the evidence is insufficient tosustaina
conviction ofthe offense affected." RCM917(a). The motion by the accused shall state with
specificity where the evidence is insufficient to enable the trial counsel to respond to the motion,
and the Court shall give each party an opportunity to be heard on the matter. ^^^RCM917(b)^
RCM917(c)^RCM917(c),discussion(stating that the military judge ordinarily should permit
the trial counsel to reopen the case as to the insufficiency specified in the motion).
Amotion fbrafinding ofnot guilty "shall be granted only in the absence of some
evidence which, together with all reasonable inferences and applicable presumptions, could
reasonably tend to establish every essential element ofan offense charged." RCM917(d). The
Court shall view the evidence "in the light most favorable to the prosecution,without an
evaluation ofthe credibility ofwitnesses." 7^^^^^7^^^^^^^.^^.7^^^^^,40M.L 373 (C.M.A.
1994)(upholding the military judge'sdecision not to enterafinding of not guilty because the
testimony ofthree witnesses, construed in the light most favorable to the prosecution, could
reasonably tend to establish the overt act). The standard of"some evidence" required to survive
amotion fbrafinding ofnot guilty isalow one. ^^^^^^7^^i^^^^^.^v^.^^^^^^^.^^^^^^.^,2013
WL 561356 (N-M.Ct.Crim.App. 2013)(concurring with the military judge who "noted
repeatedly while hearing argument on the RCM917motion^that^ the standard for surviving such
amotionis very low")^^^^7^^^^^^^.^v.7^^^^^.^,59ML 893,898 (ACt. Crim. App. 2004)
(encouraging trial judges to view the standard used to decide whether to grantamotionfbra
finding of guilty asamirror image ofthe standard used to decide whether to give an instmction
onanaffirmativedefense)^^^^7^^i^^^^^.^v.^^^^^^^,1994WL711894(A.F.Ct.Crim.App.
1994)(noting that "^t^he military judge was obviously correct in denying the motion fbra
finding of not guilty under the low,^someevidence'standard set out in R.C.M.917(d)")
(quotingRCM917(d)). Direct or circumstantial evidence satisfies the "some evidence"
standard.^^^^^^7^^^^^^^.^v7^^^^^^,59M.L195(C.A.A.F.2003)^^^^^^^^^^^^.^v^^^
645F2d453,458 (5thCirl981)

35783

B. Relevant Evidence Admitted
Relevant evidence is evidence having any tendency to make the existence ofany fact that
is ofconsequence to the determination ofthe action more or less probable than it would be
without the evidence. Military Rule ofEvidence (hereinafier "MRE") 401. Relevant evidence is
necessary when it is not cumulative and when it would contribute toaparty'spresentation of the
case in some positive way inamatter at issue. The militaryjudge has the initial responsibility to
determine whether evidence is relevant under MRE 401. ^^^^^^7^^i^^^^^.^v ^^^7^,69M.L236
(C.A.A.F.2010). Elements ofcharged offenses are relevant and defined by the specification.
Rule for CourtsMartial 307(c)(3)(definingaspecificationasaplain, concise, and definite
statement ofthe essential facts constituting the offense charged).
In the Defense Motions, the Defense does not dispute that the Combined Information
Database Network Exchange (hereinafier "CIDNE") Iraq database, CIDNE-Afghanistan
database. United States Southern Command (hereinafier "USSOUTHCOM") database.
Department ofState NetCentric Diplomacy (NCD)database, and United States Forces Iraq
Microsofi Outlook^SharePoint Exchange Server global address list (hereinafier "USFIGAL")
belonged to the United States oradepartment or agency thereof Further, the Court took
judicialnoticethatl8USC§641wasinexistenceonthedatesallegedinSpecifications4,6,
8,12andl6^^^AEDLXXXVIILAEDLXXXVIII(a)
The accused was not authorized to give classified information to the WikiLeaks
organization. ^^^,^.^.,PE59^PE60^TestimonyofCPTFulton^TestimonyofSpecialAgent
(hereinafier "SA")Mander^TestimonyofMs.Glenn^TestimonyofSSgt Hosburgh. The Court
took judicial notice that WikiLeaks posted records fiom the CIDNE Iraq database, CIDNEAfghanistan database, and USSOUTHCOM database AEDLXXXVIII SABettencourt
confirmed that WikiLeaks posted the purported Department ofState records fiom the NCD
database. ^^^PE76.
7. ^^^^^^^^7^^^^C^^^^^77
The United States presented evidence that "at or near Contingency Operating Station
Hammer. Iraq, between on or about31December 2009 and on or about5.1anuarv 2010: the
accused did steal, purloin, or knowin^lv convert records to his own use or someone else'suse. to
wit: the Combined Information Data Network Exchange Iraq database containing more than
380.000 records." ^^^AECDX. SA David Shaver testified that the accused stole, purloined, or
knowingly converted more than 380,000 records fiom the CIDNE-Iraq database onaSecure
Digital (SD)card. ^^^TestimonyofSA Shaver. SA Shaver testified that these records were
stored inafblder entitled "yada.tar.bz2.nc" with thefilename"irq^events.csv." i^^^^^^. The
folder entitled "yada.tar.bz2.nc" and its contents were admitted into evidence, i^^^ Prosecution
Exhibit(hereinafier "PE") 92. On2November 2010, SAMarkMander collected this SD card
fiom the home ofMs.DebraVanAlystne, the aunt of the accused. i^^^PE78^PE113. On3
November 2010, Ms.TamaraMairena received this SD card fiom SAMander and, onto
December 2010, released the SD card to SA Shaver for examination. ^^^PE29. This SD card
containedapicture ofthe accused, in addition to more than 380,000 records fiom the CIDNEIraq database. i^^^PE40^PE113. The SD card was admitted into evidence. ^^^PE92.

35784

The accused admitted to this misconduct to Mr.AdrianLamo. ^^^PE30. When asked
"(04:34:14PM) infb^adrianlamo.com: what do you consider the highlights7^,^" the accused
admitted "(04:35:31 PM) bradass87:The Gharani airstrike videos and full report, Iraq war event
log, the "Gitmo Papers",and State Department cable database...." ^^^^^.at46.
The United States presented evidence that "the accused acted knowingly and willfiilly
and with the intent to deprive the government ofthe use and benefit ofthe records." i^^^AE
CDX. The SD card with which the accused stored the records fiom the CIDNE-lraq database
containedadocument entitled "README.txt." ^^^TestimonyofSA Shaver. The
"README.txt" document was last written on9.Ianuary 2010. ^^^^7^. With this document, the
accused identified the contents ofthe SD card to include the "Iraq and AfghanistanSignificant
Activities(SlGACTs)between0000on01^AN 2004 and2359on31DEC 2009"^^^ PE 42
The accused also recommended that the recipient "might need to sit on this information, perhaps
90 180 days, tofigureout how best to release suchalarge amount of data, and to protect
source." ^^^PE42. Mr.TroyMoul, the accused'sinstructor at Advanced IndividualTraining
(AIT), testified that, during AIT,the accused received substantial training on the definition,
marking, and proper handling ofclassified inlormation. ^^^Testimony ofMr. Moul. The
PowerPoint slides that the accused received at AITwere admitted into evidence. ^^^PE52.
The accused also executed several NonDisclosure Agreements (NDAs),whereby the accused
acknowledged his responsibility not to disclose classified information to unauthorized persons.
These NDAs were admitted into evidence. .^^^PE59^PE60. Every member ofthe accused's
unit, who testified, stated that Soldiers were not authorized to remove classified information
fiom the Sensitive CompartmentedlnformationFacility(SCIF). ^^^TestimonyofCPT Casey
FultomTestimonyofCW2KyleBalonek^Testimony of COL David Miller.
Executive Order (EO) 13526, which the Court took judicial notice ofverifies that
classified information may not be removed fiom official premises without proper authorization.
E0 13526§41(d)^AE CDX. EO 13526 also states that "^ijnfbrmationmaybeoriginally
classified only if...(2)the information is owned by,produced by or for, or is under the control of
the United States Govemment."^^^E0 13526§l.l. Army Regulation(AR) 380 5,paragraph
2-8, which the Couritookjudicial notice of, also states that "U.S.classification can only be
applied to information that is owned by,produced by or for, or is under the control of, the United
States Govemment."^^^AR380 5 at^28.
The accused made many admissions to Mr. Lamo that establishareasonable inference
that the accused acted knowingly and willfiilly and with the intent to deprive the government of
the use and benefit ofthe records. Asampling ofthe relevant statements, in chronological order,
is set forth below:
i

"(12:22:49 PM)bradass87:theairgap has been penetrated, ^L^B^"PE 30, at8

ii.

"(12:26:09 PM)bradass87: lets just say ^someone'^iknow intimately well, has been
penetrating US classified networks, mining data like the ones described...and been
transferring that data fiom the classified networks over the "air gap" ontoa
commercial network computer... sorting the data, compressing it, encrypting it, and

35785

uploading it toacrazy white haired aussie who can't seem to stay in one country very
long^L^B^"PE30,at8
iii.

"(1:34:11PM) bradass87:waiting to redeploy to the US,be discharged...and figure
out how on earth im going to transition
(1:34:45 PM)bradass87:all while witnessing the worldfieakout as its most intimate
secrets are revealed^.^" PE30,atlO.

iv.

"(03:07:01 PM) bradass87:ijust...couldnt let these things stay inside of the
system...and inside ofmy head...^.^" PE 30, at 26.

V.

"(02:23:25 PM)bradass87:icould've sold to russia or china, and made bank7
(02:23:36 PM) info(^adrianlamo.com: why didn'tyou7
(02:23:58 PM)bradass87: because it'spublic data
(02:24:15 PM) info(^adrianlamo.com:imean, the cables
(02:24:46 PM)bradass87: it belongs in the public domain
(02:25:15 PM) bradass87: information should be fiee
(02:25:39 PM)bradass87: it belongs in the public domaina l "

PE30(ellipses in original).
The United States presented evidence that "the records were ofavalue greater than
$1.000." i^^^AECDX. The parties entered intoastipulation of expected testimony for Mr.
WyattBora. ^^^PE115. This evidence confirms the following:
i.

"In 2007,the program spent approximately $900,000 on data management in Iraq.In
2008, the program spent approximately$l,000,000 on data management in Iraq. In
2009, the program spent approximately $4,200,000 on data management in
Afghanistan and$l,800,000 on data management in Iraq.In 2010, the program spent
approximately $3,600,000 on data management in Afghanistan. In 2011, the program
spent approximately $3,000,000 on data management in Afghanistan and
$570,0000on data management in Iraq. In 2012, the program spent approximately
$5,000,000 on data management in Afghanistan.These data management costs are
directly associated with keeping the data useable on the classified networks."

ii.

"In 2005,the program spent approximately$l,100,000 for development and testing in
Iraq and$l,800,000 in development and testing in the Continental United States
(CONUS).In 2006, the program spent approximately$l,770,000 for development
and testing in Iraq and $790,000 in development and testing in CONUS.In 2007,the
program spent approximately$l,320,000 for development and testing in Iraq and
$1,810,000 in development and testing in CONUS. In 2008, the program spent
approximately $950,000 for development and testing in Afghanistan, $2,690,000 for
development and testing in Iraq, and $3,610,000 in development and testing in
CONUS.In 2009,the program spent approximately $2,760,000 for development and
testing in Afghanistan, $3,280,000 for development and testing in Iraq, and
$5,500,000 in development and testing in CONUS. In 2010, the program spent

35786

approximately $4,200,000 for development and testing in Afghanistan, $2,650,000
for development and testing in Iraq, and $4,980,000 in development and testing in
CONUS"
iii.

"In 2007,the program spent approximately $720,000 on hardware in Iraq.In 2008,
the program spent $560,000 on hardware in Afghanistan and$190,000 on hardware
in Iraq. In 2009,the program spent approximately$l,660,000 on hardware in
Afghanistan and $520,000 on hardware in Iraq. In 2010, the program spent $760,000
on hardware in Afghanistan.In 2011,the program approximately spent$180,000 on
hardware in Afghanistan. In 2012, the program spent approximately $3,680,000 on
hardware in Alghanistan."

iv.

"In 2005,the program spent approximately$l,100,000 for Iraq training. In 2006, the
program spentapproximately$l,180,000 for Iraq training and $480,000 forCONUS
training. In 2007, the program spent approximately $2,570,000 for Iraq training and
$200,000 fbrCONUS training. In 2008, the program spent approximately$l,850,000
fbrAfghanistantraining, $5,220,000 for Iraqtraining,and$l,550,000fbrCONUS
training.In 2009,the program spent approximately $5,360,000 for Afghanistan
training, $6,370,000 for Iraqtraining,and$3,660,000forCONUS training. In2010,
the program spent approximately $8,140,000.00 for Afghanistan training, $5,150,000
for Iraq training, and $3,320,000 for CONUS training. In 2011, the program spent
approximately$18,410,000 for Afghanistan training, $2,650,000 for Iraq training,
and $6,150,000 for CONUS training. In 2012, the program spent approximately
$8,790,000 for Afghanistan training and$2,740,000forCONUS training"

V.

"From 2005 through2012, the CIDNE program spentapproximately$18L160,000
on contracted support required to run the program, to include development, training,
data management, and hardware. In addition, fiom 2005 through 2012, the program
spent approximately $5,434,800.00 on program management support, to include
government testing, administrative oversight, and research and development."

1^^^^^^. Mr.Danny Lewis also testified that the value ofthese records is greaterthan$l,000.
Testimony ofMr.Lewis.
The United States presented evidence that "under the circumstances, the conduct ofthe
accused was to the prejudice of good order and discipline in the armed forces or was ofanature
to brin^ discredit upon the armed forces." ^^^AECDX. COL Miller, the Brigade Commander
for 2d Brigade CombatTeam(BCT),10th Mountain Division, testified that he v^as "stunned"
when he learned ofthe accused'smisconduct because the last thing he anticipated was an
internal security breach fiom one oftheir own. i^^^Testimony of COL Miller. COLMiller
testified that the impact to the brigade'smorale was significantly affected.
Before
learning ofthe accused'smisconduct, COL Miller explained that the brigade'smorale was at its
highest point since he took command because many ofthe Soldiers assigned to the unit had
deployed multiple times and, having been tasked as the first BCT responsible for drawdown in
Iraq, the Soldiers were seeing the fruits oftheir labor over the past ten years coming to fiuition.
COL Miller testified that the accused'smisconduct was prejudicial to good order and

35787

discipline because the atmosphere throughout the brigade asaresult ofthe accused'smisconduct
was like that ofa"fiineral"-fiill of anger, sadness, grief, and frustration. ^^^^7^. COLMiller
also testified that the impact to the brigade'stmst with one another was significantly affected.
^^^^7^. COL Miller testified that trust is critical in theater and, similar to how Soldiers must tmst
one another inacombat patrol, trust is crucial among Soldiers in theS2section for safeguarding
classified information. ^^^^7^. The accused'sacts as described by COL Miller, to include, ^7^^^^
^^^7^, the harm to trust among Soldiers, caused discredit. Furthermore, the accused'sadmission
ofthe world'sa^areness ofthe records he compromised caused discredit. ^^^PE30.
Lastly,Mr..lason Milliman testified that havingalarge amount ofinformation stored on
one'sdesktop caused problems with the Distributed Common Ground SystemArmy(DCGSA)
computers in theater. i^^^TestimonyofMr.Milliman. Mr. Chad Madaras,aformer Soldier who
worked on the day shifi and sharedaclassified government computer with the accused in theater,
testified that he observed the size of the accused'sdesktop and testified that it was large and
filled ^ith many items. .^^^TestimonyofMr.Madaras. Mr.Madaras testified that he
experienced many problems with his computer afier the accused'sshifi completed. Mr.Madaras
testified that he lost about two hours ofwork each time he experienced problems with his
computer. ^^^^7^.
.2. ^^^^^^^^^^^^C^^^^^77
The United States presented evidence that "at or near Contingency Operating Station
Hammer. Iraq,between on or about31December 2009 and on or about8.1anuarv 2010: the
accused did steal, purloin, or knowingly convert records to his own use or someone else'suse, to
wit: the Combined Information Network Exchange Afghanistan database containing more than
90.000 records." i^^^AECDX. SA Shaver testified that the accused stole, purloined, or
knowingly converted more than 90,000 records fiom the CIDNE-Afghanistan database onaSD
card. i^^^TestimonyofSA Shaver. SA Shaver testified that these records were stored ina
folder entitled "yada.tar.bz2.nc" with thefilename"afg events.CSV." ^^^TestimonyofSA
Shaver. Thefilename"afg events.csv" was last written on8.Ianuary 2010. ^^^^7^. ThisSD
card containedapicture ofthe accused, in addition to more than 90,000 records fiom the
CIDNE-Afghanistan database. ^^^PE40^PE113. The SD card ^as admitted into evidence.
^^^PE92
The United States presented evidence that "the accused acted knowingly and willfully
and with the intent to deprive the government ofthe use and benefit ofthe records." ^^^AE
CDX. Evidence supporting this element is listed above in Specification4ofCharge II.
The United States presented evidence that "the records were ofavalue greater than
$1.000." i^^^AECDX. Evidence supporting this element is listed above in Specification4of
Charge II. Mr.Lewis also testified that the value ofthese records is greater than$l,000.
Testimony ofMr. Lewis.
The United States presented evidence that "under the circumstances, the conduct ofthe
accused was to the prejudice ofgood order and discipline in the armed forces or was ofanature

35788

to bring discredit upon the armed forces." ^^^AECDX. Evidence supporting this element is
listed above in Specification4ofCharge II.
^. i^^^^^^^^7^^^^C^^^^^77
The United States presented evidence that "at or near Contingency Operating Station
Hammer.lraq,on or about8March 2010: the accused did steal.purloin, or knowingly convert
records to his own use or someone else^s use, to wit:aUnited States Southern Command
database containing more than 700 records." i^^^AECDX. SA Shaver testified that PE 83
consists ofasummaryoflntelink logs showing that the accused, on8March 2010, usedWget to
retrieve more than 700 records fiom the United States Southern Command database accessible
through the .IointTaskForce-Guantanamo(.ITFGTMO)Detainee Assessment Branch website
on Intellipedia. ^^^TestimonyofSA Shavers PE82^PE83. SA Shaver explained that the
number "200" in PE 83 means that the accused successfully executedWget to retrieve the
"DocumentID" of records relating to fTFGTMO detainees. Mr..leffiey Motes confirmed that
the records in the United States Southern Command database were stored by "DocumentlD" and
that the above database consisted of over700 records. ^^^PE131.
The accused further admitted to his misconduct to Mr.Lamo. ^^^PE30. When asked
"(04:34:14PM) infb^adrianlamo.com: what do you consider the highlights7^,^" the accused
admitted "(04:35:31 PM) bradass87:The Gharani airstrike videos and fiifi report, Iraq war event
log, the "Gitmo Papers",and State Department cable database^.^" ^^^^7^. at 46.
The United States presented evidence that "the accused acted knowingly and willfully
and with the intent to deprive the government ofthe use and benefit ofthe records." ^^^AE
CDX. Evidence supporting this element is listed above in Specification4ofCharge II.
The United States presented evidence that "the records were ofavalue greater than
$1.000." ^^^AECDX. The stipulation ofMr.Motes explained, in detail, the steps necessary to
prepare the records fiom the United States Southern Command database. ^^^PE131. Mr.
Motes confirmed that it took, on average, 80-90 working hours to create each ofthe700 records
the accused stole and that the most detainee assessments created in one year was approximately
520. ^^^^7^. Mr.Motes also confirmed that the lowest ranking Servicemember responsible for
creating these records was E-4 and the lowest ranking government employee responsible for
creating these records was GS 12. The Court tookjudicial notice ofthe salaries for persons of
these ranks, i^^^ AEDLXXXVIII. Mr.Lewis also testified that the value of these records is
greater than$l,000. i^^^Testimony ofMr.Lewis.
The United States presented evidence that "under the circumstances, the conduct ofthe
accused was to the prejudice ofgood order and discipline in the armed forces or was ofanature
to brills discredit upon the armed forces." ^^^AECDX. Evidence supporiing this element is
listed above in Specification4ofCharge II.

35789

^. ^^^^^^^^7^^^2^C^^^^^77
The United States presented evidence that "at or near Contingency Operating Station
Hammer, Iraq,between on or about 28 March 2010and on or about 27 May2010: the accused
did steal,purloin, or knowingly convert records to his own use or someone else'suse, to wit: the
Department ofState NCD database containing more than 250,000 records." .^^^AECDX. The
Department ofState firewall server logs show an incredible amount ofactivity between the
accused'sclassified government computer and the NCD database. ^^^PE159. SA Shaver
testified that he recoveredafblder fiom the accused'scomputer with Department ofState cables.
i^^^Testimony ofSA Shavers ^^^PE 12. SA Shaver explained how the accused converted the
cables into Comma SeparatedValue(CSV) format with Base64 encryption. ^^^Testimonyof
SA Shaver. The excel spreadsheet retrieved fiom the accused'scomputer shows that the accused
was cataloguing the thefi of251,287 Department ofState diplomatic cables and was admitted
into evidence. ^^^PE102. SABettencourt retrieved 251,287 purported Department ofState
diplomatic cables fiomWikiLeaks. ^^^PE76. The accused admitted this misconduct in chats
with Mr.Lamo, stating: "(02:16:48 AM) infb^adrianlamo.com: embassy cables7(02:16:54
AM)bradass87:yes(02:17:00AM)bradass87:260,000inall^B^"^^^PE30,at34
The United States presented evidence that "the accused acted knowingly and willfiilly
and with the intent to deprive the government ofthe use and benefit ofthe records." ^^^AE
CDX. Evidence supporting this element is listed above in Specification4ofCharge II.
Additionally,Mr. Charley Wisecarver testified that each diplomatic cable in the NCD database
displayedawamingbanner. ^^^TestimonyofMr.Wisecarver. ^^^PE169(c)^PE170(c)^PE
171(c)^PE172(c)^PE173(c)^PE175(c)^PE176(c)^PE177(c)Further,andinadditionto those
statements listed in Specification4ofCharge II, the accused made many additional admissions
to Mr.Lamo establishareasonable inference that the accused acted knowingly and willfully and
with the intent to deprive the government ofthe use and benefit ofthe records. These
admissions, in chronological order, are set forth below:
i.

"(12:52:33 PM)bradass87: Hilary Clinton, and several thousand diplomats around
the world are going to haveaheart attack when they wake up one morning, and finds
an entire repository ofclassified foreign policy is available, in searchable format to
the public. . ^ L "

ii.

"(01:52:30 PM)bradass87:fi^nny thing is... we transffered so much data on
unmarked CDs...
(01:52:42 PM)bradass87: everyone did...videos...movies...music
(01:53:05 PM)bradass87:all out in the open
(01:53:53 PM)bradass87: bringing CDs too and fiom the networks was^isacommon
phenomeon
(01:54:14PM) infb(^adrianlamo.com: is that how you got the cables out7
(01:54:28 PM)bradass87:perhaps
(01:54:42 PM)bradass87:iwould come in with music onaCD-RW
(01:55:21 PM)bradass87: labelled with something like "Lady Gaga"...erase the
music...then writeacompressed split file
(01:55:46 PM)bradass87:noonesuspectedathing

35790

(01:55:48 PM)bradass87:^Lkindofsad
(01:56:04 PM)intb(^adrianlamo.com: and odds are, they never will
(01:56:07 PM)bradass87:ididnt even have to hide anything
(02:00:12PM) bradass87:everyone just sat at their workstations...watching music
videos^carchases^buildingsexploding...and writing more smff to CD^DVD...the
culture fed opportunities"
iii.

"(04:34:14PM) infb(^adrianlamo.com: what do you consider the highlights^
(04:35:31 PM) bradass87:The Gharani airstrike videos and fiill report Iraq war event
log the "Gitmo Papers" and State Department cable database"

PE30(ellipses in original)(emphasis added).
The United States presented evidence that "the records were ofavalue greater than
$1.000." ^^^AECDX. Mr.Wisecarver testified that the technicians responsible for maintaining
the NCD database earned approximately $70,000 annually and that the yearly maintenance ofthe
database "well" exceeded$l,000. ^^^TestimonyofMr.Wisecarver. Mr.Lewis also testified
that the value ofthese records is greater than$l,000. .^^^Testimony ofMr.Lewis.
The United States presented evidence that "under the circumstances, the conduct ofthe
accused was to the prejudice of good order and discipline in the armed forces or was ofanature
to brin^ discredit upon the armed tbrces." ^^^AECDX. Evidence supporting this element is
listed above in Specification4ofCharge II.
^^^^^^^^7^^^^^C^^^^^77
The United States presented evidence that "at or near Contingency Operating Station
Hammer. Iraq,between on or aboutllMay2010and on or about 27 May 2010: the accused did
steal,purloin, or knowingly convert records to his own use or someone else'suse. to wit: the
United States Forces Iraq Microsofi Outlook^SharePoint Exchange Server global address list."
^^^AECDX. On7May2010,WikiLeaks requested viaTwitter email addresses for military
personnel. i^^^PE31.SAAlfied Williamson confirmed that the accused, onllMay 2010,
searched Google for"global address list Microsofi excel macro." ^^^PE143. Theaccused
conducted this search on the unclassified government computer in the supply office atForward
Operating Base (FOB)Hammer, Iraq. ^^^^7^. SAWilliamson found the accused'sprofile on
this government computer,and SSG Peter Bigelow,the other user of this computer, confirmed
that he "did not know what the Global Address List was." .^^^PE142. SAWilliamson found
the text file entitled "blah.txt"on this computer which contained74,000 exchange formatted
email addresses and names ofunit, ranks, and sections of personnel. ^^^PE143.
The United States presented evidence that "the accused acted knowingly and willfully
and with the intent to deprive the government ofthe use and benefit ofthe records." ^^^AE
CDX. SAWilliamson confirmed that"on login to the computer byauser, the computer was set
to displayaDepartment ofDefense warning banner and legal notice." PE143. Further,Mr.
Moul testified that the accused received Operational Security(OPSEC) training at AIT,which
instructed the accused not to disclose this type ofinformation to unauthorized persons.

35791

Testimony ofMr. Moul. The tasker created by the accused to "exfiltrate" the global address list
further supports that the accused acted knowingly and willfiilly and with the intent to deprive the
government ofthe use and benefit ofthe records. ^^^TestimonyofMr.fohnson^PE122.
Digital remnants ofthe USFIGAL were located on the accused'spersonal computer. 7^.
The United States presented evidence that "the records were ofavalue greater than
$1.000."^^^AE CDX. Mr.Lewis also testified that the value of these records is greaterthan
$1,000. ^^^Testimony ofMr.Lewis. CW4Nixon testified that the sofiware and hardware
pieces required to operate the USF-I GAL cost between tens ofthousands and overamillion
dollars. ^^^TestimonyofCW4NixonCW4Nixon also testified thatthe USFIGAL could not
operate without the soltware and hardware. i^^^^T^
The United States presented evidence that "under the circumstances, the conduct ofthe
accused was to the prejudice ofgood order and discipline in the armed forces or was ofanature
to brin^ discredit upon the armed forces." ^^^AECDX. Evidence supporting this element came
fiom the testimony ofCOL Miller, as set Ibrth above in Specification4ofCharge II. The
Defense does not allege that the United States has failed to provide evidence that the accused's
conduct is prejudicial to good order and discipline.
Defense GAL Motion^21. The analysis
forafinding of prejudice to good order and discipline is conducted separately fiom the analysis
ofwhether conduct is service discrediting. i^^^,^^,^^^7^^^^^^^.^v7^^^^.^,26M.L445,448
(C.M.A.1988). Evidence ofboth prejudice to good order and discipline and discredit to the
service has been admitted.
Part I.B.I,
Therefore, based on the above evidence and all reasonable inferences drawn therefiom,
the United States satisfied the requirements ofRCM917(d).
C. Relevance ObjectionForfeited Where Not Timely Made
In order to preserve an objection when "the ruling is one admitting evidence" the
objecting party must makea"timely objection oramotion to strike" and must state the specific
ground ofthe objection MRE103(a)(l)^^^^^^^^^^^^.^v.^^^^^.^^,66ML208,210(CAAF.
2008). Application ofl03 and its requirement fbratimely objection should be applied
practically,notformulaically. ^^^^^^^^.^^,66M.Lat210.
In the instant case, the Defense did not object to the evidence detailed in Part LB as
irrelevant. Tothe extent the Defense believed the admitted evidence regarding the stolen
databases did not relate to the§641specifications, the Defense should have raised an objection
totheevidence'srelevance. The Defense declined to object. Having thus conceded the
evidence'srelevance, the Defense cannot claim that "the Government has failed to adduce
evidence that ^the accused! stole or converted the databases in question." The Defense Motions'
arguments are notatimely objection because the Defense remained silent about the relevance of
the evidence detailed in Part I.B upon its introduction into evidence. 7^^^^^:^^^^..^.^^^^^^^^^^
v^^^^^7^,289F3d 1283,1296(llthCir.2002)("Whereaparty has the oppormnitytoobject,
but remains silent of fails to state the grounds for objection, objections...will be waived....")
(quotations and citations omitted)^ ^^^7^^ ^^^^^.^^^^^^,40F3d 1347,1378 79 (2d Cir. 1994)
(holding objection waived where not raised duringasidebar conference despite ample

11

35792

opportunity); see also United States v. White, 25 M.J. 50, 52 (C.M.A. 1987) (deciding the
defense forfeited any objection to assailant's identity where defense elicited the identity of the
assailant on cross-examination). Therefore, the Defense forfeited any objection about the
relationship of the evidence to the res of the § 641 specifications.
II. VARIANCE
The Defense also avers that the admitted evidence constitutes a fatal variance because
"information" was not specifically charged. See Defense 641 Motion % 9 ("If the Government in
this case intended to charge thefi of the information itself or thefi of a copy of a record, instead of
thefi of the database, such a charge must appear in the Charge Sheet.") (emphasis in original).
The Defense claim lacks merit because no variance exists. The United States charged that the
accused compromised databases, to include the records contained in the databases. See Charge
Sheet. The United States admitted evidence to provide a reasonable inference the records were
stolen and converted. Furthermore, the accused himself referred to the records he asported as
"databases" in his chats.
"A variance between pleadings and proof exists when evidence at trial establishes the
commission of a criminal offense by the accused, but the proof does not conform strictly with the
offense alleged in the charge." UnitedStates v. Allen, 50 M.J. 84, 86 (C.A.A.F. 1999) (citing
United States v. Lee, 1 M.J 15, 16 (C.M.A. 1975)). To prevail on its claim of a fatal variance,
the Defense must demonstrate that the variance is material and substantially prejudicial. United
States V. Finch, 64 M.J. 118, 121 (C.A.A.F 2006). A variance is material where it "substantially
changes the nature of the offense, increases the seriousness of the offense, or increases the
punishment ofthe offense." UnitedStates v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (citing
Finch, supra). A variance is prejudicial where it puts the accused at risk of another prosecution
for the same conduct, misleads to the extent that the accused is unable to prepare adequately for
trial, or denies the accused the opportunity to defend against the charge. Id. (citing United States
V. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003)).
A. US Charged Databases and Records, and those charges include the info in the records
1. Plain meaning of charged terms "database " and "records " includes information
For all § 641 specifications, the accused has been charged with stealing, purioining, or
converting a database, to include its records, or the USF-I GAL. The Charge Sheet specifies
that the CIDNE-Iraq database contained more than 380,000 records, the CIDNE-Afghanistan
database contained more than 90,000 records, the USSOUTHCOM database contained more
than 700 records, and the NCD database contained more than 250,000 records. The Defense
opines that the United States did not charge the accused with stealing or converting information.

' In this motion, the United States uses the term "steal" and its variations as synonymous with "stealing" and
"purloining." The element of stealth required for "purloining" is not necessary under the specifications at issue
because the accused has been charged with stealing, purloining, or converting certain databases and information.
See Charge Sheet. However, the United States has offered evidence of the stealthiness employed by the accused in
compromising the databases. See PE 30.

12

35793

Defense 641 Motion at ^ 5-6 (stating that a database is "not any way synonymous with the
information or records contained therein" and that the United States could have charged the
accused with stealing "information").^ By the plain meanings of the § 641 specifications, the
records include the information contained therein. A database is "a compilation of information
arranged in a systematic way and offering a means of finding specific elements it contains, ofien
today by electronic means." Black's Law Dictionary (9th ed. 2009). Similarly, a record is
"information that is inscribed on a tangible medium or that, having been stored in an electronic
or other medium, is retrievable in perceivable form." Black's Law Dictionary (9th ed. 2009).
The Charge Sheet informed the accused of the stolen res because the Charge Sheet described
stolen records, which, by definition, includes the information in those records. See Part III, infra;
see, e.g.. Testimony ofMr. Lewis, Testimony of CW4 Nixon; Testimony of CW4 Rouillard.
The Defense's reliance on its filing cabinet analogy is misplaced. The United States
charged the accused with stealing or converting the databases, which consisted of a collection of
records. The databases were contained in servers. In the instant case, the servers are more
appropriately comparable to a filing cabinet. While the servers are relevant to valuation as
instruments that support the use of the databases, the servers are not the charged databases.
2. The accused agrees that "database " and "records " includes information
Moreover, the accused repeatedly referred to the records he compromised as "databases."
See PE 30. The accused also describes the information contained in these databases, writing,
"(12:21:24 PM) bradass87: [S]ay . . . a database of half a million events during the Iraq war . . .
from 2004 to 2009 . . . with reports, date time groups, lat-lon locations, casualty figures . . . ? or
260,000 state department cables from embassies and consulates all over the world, explaining
how the first world exploits the third, in detail, from an internal perspective?" Id. at 8 (ellipses in
original); see also id. at 9 (describing the 9/11 pager messages as a database). The accused
further connected a database to the information it contains, nofing, "(7:44:01 AM) bradass87:
[B]ut once a single piece of information is found . . . then the database can be sifted and sified
and sified some more, for refinement, so other intelligence functions can get in the act." Id. at 17
(ellipsis in original).
3. Information as part of records comports with precedent
Charging records and the information contained therein comports with applicable
precedent in criminal law. The contents and information contained in government records
determines the criminality of the thefi of the records more than the form of the records. See
UnitedStates v. Bottone, 365 F.2d 389 (2d Cir. 1966), cert, denied, 385 U.S. 974 (1966) ("When
the physical form ofthe stolen goods is secondary in every respect to the matter recorded in
them, the transformation of the information in the stolen papers into a tangible object never
possessed by the original owners should be deemed immaterial."); United States v. Lambert, 446
F.Supp. 890, 894 (D.C. Conn. 1978). Under § 641, the transmission ofthe information
contained in documents is just as larcenous as thefi of the documents themselves. United States

^ Specific records, to include birth records and marriage records, are also defined to include information. Black's
Law Dictionary (9th ed. 2009).

13

35794

V. Rosner, 352 F.Supp. 915, 922 (D.C.N.Y. 1972) (noting that the importance of information in
documents described in Bottone applies to § 641 charges).
B. United States Presented Evidence ofThefi and Conversion
The accused both stole and converted the information he compromised. Relying on dicta,
the Defense argues that the United States must prove conversion and demonstrate a serious and
substantial interference with its rights in the databases. Defense 641 Motion ^ 1 1 . The
Defense's theory ignores the statutory terms of § 641 and the Charge Sheet's use of the statutory
theories of stealing or conversion. See United States v. Morissette, 342 U.S. 246, 271 (1952)
("What has concerned codifiers of the larceny-type offense is that gaps or crevices have
separated particular crimes of this general class and guilty men have escaped through the
breaches. . . . The codifiers wanted to reach all such instances."). The Defense further argues
that Marshall sets forth a precedent for a fatal variance. See Defense 641 Motion
27-30. In
Marshall, the identity of the accused's custodian as charged was not proven. See Marshall, 67
M.J. at 420-21. Accordingly, the substitution of a different custodian changed the identity of the
offense. Id. In this case, however, the identity of the records remains the same because the
evidence relates to the charged databases and records. Thus, Marshall is not pertinent.^
Here, to "steal" means to wrongfully take money or property belonging to the United
States Government with the intent to deprive the owner of the use and benefit temporarily or
permanently. AE CDX. A conversion may include the misuse or abuse ofUnited States
property and may reach use in an unauthorized manner or to an unauthorized extent of property.
Id. The misuse must seriously and substantially interfere with the United States Government's
property rights. Id.
1. Accused's acts constitute theft ofUnited States Government Records
Thefi of records occurs where copies of the records are transmitted to an unauthorized
party even though the records remain in the custody and control of the United States. United
States V. DiGilio, 538 F.2d 972, 977 (2d Cir. 1976). A copy of a record does not alter its
character as a record under the ambit of § 641. Id. ("A duplicate copy is a record for purposes of
the statute, and duplicate copies belonging to the government were stolen.") (citations omitted).
Furthermore, the accused remains criminally liable under § 641 even where the United States
retains possession of the original records. See id. (rejecting the accused's argument that § 641
does not apply where the United States, at most, loses exclusive possession of information
contained in confidential records); see also Flores-Figueroa v. United States, 556 U.S. 646, 647
(2009) (upholding criminal liability for knowing transfer, possession, or use, without lawful
authority, a means of identifying another person). Indeed, § 641 makes criminal the asportation
of records owned by the United States. DiGilio, 538 F.2d at 977.
In his chat logs, the accused admitted to asporting the data from a United States
Government computer system onto his personal computer and compromising the data by
conveying it to Mr. Julian Assange. The accused stated, "[L]et's just say *someone* 1 know
Changing the identity of the custodian prevents the accused from confronting the custodian. Here, the accused has
been able to confront the custodians of the charged databases and records.

14

35795

intimately well, has been penetrating us classified networks, mining data like the ones described
...and has been transferring that data fiom the classified network over the "air gap"ontoa
commercial network computer...sorting the data, compressing it, encrypting it, and uploading
it toacrazy white haired aussie who can't seem to stay in one country very long ^L." PE30at8
(ellipses in original). The accused admitted to compromising CIDNE Iraq, CIDNE Afganistan,
and NCD. 7^. at 8. The accused also admitted to compromising the USSOUTHCOM database,
stating that Mr.Assange has "the ^Gitmo Papers."7^. at 46. The accused'sadmission providesa
reasonable inlerence ofhis intent to deprive the United States Government permanently ofthe
records and information contained therein.
Additionally,these statements corroborate the accused'sintent to steal the USFIGAL.
The accused removed the USF-I fiomaUnited States Government computer system. CW4
Nixon testified that the only United States Government personnel had access to the USFIGAL
on NIPR system. The accused extracted the USFIGAL fiom the United States Government
system to his personal computer. This act constituted stealing. Moreover, the accused removed
the USFIGAL from the possession ofthe United States Government and placed it in his private
possession afier WikiLeaks postedatweet specifically requesting military email addresses, i^^^
PE31. The accused had the ability to view the USFIGAL but did not possess the capability to
export the USF-I GAL. ^^^TestimonyofCW4Nixon. The accused searched fbramacro,
which isacomputer program, that removed the USF-I GAL fiomaUnited States Government
system. ^^^PE143. The accused also createdatasker to "exfiltrate" the USFIGAL.
Testimony ofMr. Johnson; PE 122. Thus, the thefi was complete the moment the accused took
the USFIGAL fiom the possession ofthe United States Government into his personal
possession with the intent to deprive the United States ofthe stolen property.
AECDX.
Afier-the-fact deletion ofthe record does not render innocent an already completed
criminal act. The Defense'sproffered argument regarding contradictory evidence is not
appropriate under RCM917. ^^^917(a)(stating that Defense may offer evidence ifits request
fbrafinding ofnot guilty is denied). Similarly,any evidence of transmission would only
enhance the criminality ofthe already completed thefi, but the lack ofenhancement also does not
render innocentacompleted criminal act.
2. ^^^^.^^^^.^^^^.^^^^.^^^7^^^^^^v^^.^^7^^^^^^7^^^^^^^.^G^v^^^^^
The existence ofaproperty in the contents of confidential information has long been
judicially recognized. ^^^C^^^^^^^^.^^^7^^^^^^^.^,484U.S.19,25 (1987)(recognizingas
worthy ofprotectionaproperty right in confidential business information); ^^^^^^^^^^^.^v
^^7^^^, 601F.2d 69,71 (2d Cir. 1979)(recognizingaproperty right in unpublished waitings)
(citations omitted). The United States Government is responsible for the accountability and
dissemination of classified information and has set up certain procedures and precautions to
protect classified documents and the information contained therein. ^^^7^^i^^^^^.^v..^^^^^,889
F.2d51,53. The United States Government has created the systems for protecting classified
information to protect its rights to confidentiality and exclusivity in the information it elects to
classifiy. ^^^^7^. (holding that authority to determine whetheradocument should be transferred
isafunction ofthe United States Government, not the holder ofthe document). Accordingly,the
United States hasaproperty interest in its classified records vyhich it may protect by stamte asa

15

35796

thing ofvalue under§641. ^^^(^^7^^^,601F.2dat71.(citing^^^7^^^^^^^.^v..^^^^^^^^^,445
F.2dl076,1087 (9th Cir. 1971). Conversion of computerized records asa"misuse or abuse of
property its use in an unauthorized manner"occurs where an accused transfers information to an
unauthorized party. ^^^^7^. (holding that sale ofinformation contained in computerized Drug
EnforcementAgencyrecordscouldbefoundtoviolate§641asaconversionofthe
computerized records)(citation and quotation marks omitted).
Conveyance ofUnited States Government records to an unauthorized party constitutes
conversionunder§64L^^^7^^^^7^^,538 F2dat976 ln7^^^^7^^^
unauthorized copies documents related to an investigation ofalleged criminal activity and
delivered the copies to unauthorized persons. 7^^^^7^7^,538 F.2dat976. Based on these acts, the
defendants were charged with converting to their own use "records ofthe United States; that is,
photocopiesofofficialfilesoftheFederalBureauoflnvestigation...." 7^^^^7^7^,538F.2dat
976. Here, the accused converted the United States Government records by conveying them to
WikiLeaks. WikiLeaks lacked the authority to possess this information. i^^^TestimonyofSA
Mander;TestimonyofMs.Glenn;TestimonyofMr.Hosburgh. Defense'sreliance on ^^^7^^
^^^^^.^^.C^^^^7^.^,56F.3d 1416(D.C.Cir. 1995), is inapposite because C^/^^7^.^ involved an
infiingement on computer systems within the possession on the United States Government and
not the United States Govemment'sproprietary interest in its United States Government
information. In the instant case, the accused stole and converted United States Government
records by transferring them to an unauthorized party or onto his personal computer.
Additionally,this conveyance harmed the United State'sinterest in exclusive possession ofthe
information in the records, thereby fiirther adding to the conversion caused by the accused.
Furthermore, disclosure ofUnited States Government proprietary information creates
criminal liability for converting that information. i^^^C^^^^^^^,484U.S.at26 27;^^^7^^
^^^^^.^ i^7^^^^^^,932F2d 306, 309 10(4th Cir 1991) Specifically,misappropriating
information confidentially held by one party by giving it to an unauthorized party constituted
interference with the right to exclusive use ofthe compromised information. ^^^^7^. In
C^^^^^^^,the author of an investment column entered into an agreement to give his CO
conspirators advance information as to the content and timing ofthe article. 7^. at 23. The
contents of the articles were not affected and the owner ofthe information did not suffera
monetary loss. 7^. at 23,26. Nevertheless, the defendants'conviction for wire and mail fiaud
underl8U.S.C.§1341 andl8U.S.C.§ 1343,each of which carriedapotential sentence ofup to
five years,was upheld. i^^^^7^.at22nn.34. Deprivation ofthe right to exclusive use ofthe
information establishedasufficient basis for criminal liability because exclusivity was an
imporiant aspect ofthe confidential information. ^^^^^^7^^^^7^7^, 538 F.3d at 978(finding merit
to the Govemment'sargument thatamisappropriation ofinformation under§641 but declining
to so hold whereatechnical larceny was proven).
Here, the accused compromised classified, other United States Government information,
orPIL This information had value because it was closely held. i^^^Testimony ofMr. Lewis.
The United States Government classifies information, ^7^^^^ ^/^7^, to protect it from adversaries.
^^^^7^. Adversaries seek United States Government information to attack the United States.
PE183. Thus, the accused substantially interfered with United States Government information
by compromising it toWikiLeaks.

16

35797

B. Copies Do Not ConstituteaMaterial or PrejudicialVariance
The Defense assertsafatal variance on two bases. First, the Detense states that the
distinction between "infbrmation,""database,"and "copy" affects valuation and any preparation
forthevaluationelementofthe§641 specification Defense641Motion^26 Asdiscussedin
Part III, ^7^^, this Defense argument ignores established precedent for determining valuation.
Second, the Defense maintains that the distinction between stealinga"database,""information,"
or"copiesofrecords"altersthesubstanceofthe§641specificationandharmstheaccused's
abilityto presentadefensetothe§641specificationsDefense641Motion^30
The accused stole and converted records maintained on United States Government
computer systems. The Defense argues thatafatal variance exists because the Charge Sheet
specifies records and not copies ofrecords. .^^^ Delense 641Motion^4. Therecords
compromised by the accused are the records maintained by the United States. The United States
maintained copies ofthe records because they were digitally stored on United States Government
computer systems. In this case, any distinction between copies ofthe records is feckless because
the records were stored digitally. i^^^7^^^^7^7^,538 F.2dat978 (referringtothefiofcopiesas"an
asportation ofrecords owned by the United States")(emphasis added). This distinction cannot
beamaterial variance because it does not change the nature ofthe offense, let alone substantially
change the nature ofthe offense, increase the seriousness ofthe offense, or the punishment ofthe
offense. Thus, any variance is not material.
Moreover,any variance betweenadigital record andadigital copy ofthe same record is
not prejudicial. The distinction does not place the accused at risk ofanother prosecution because
the accused is charged with stealing and converting the actual records,which he in fact stole and
converted. Nor did the distinction affect the accused'sability to prepare his defense because the
United States charged the accused with stealing and converting the records usingaterm,
"database,"the accused himself used to describe the records he compromised.
C. No Variance Regarding USFIGAL
The United States admitted evidence that the accused stole the USF-I GAL, and the
Defense allegation that the property stolen by the accused was not, in fact, the USFIGAL lacks
merit. CW4Nixon testified that the USF-I GAL had approximately 160,000 users.
Testimony of CW4Nixon. CW4Nixon testified that the USFIGAL contained, ^7^^^^ ^^^7^,
names and email addresses connected to the "iraq.centcom.mif'domain. 7^ CW4Nixon fiirther
testified that he identified names in PE47he personally knew existed in the USFIGAL and that
the "iraq.centcom.mil" domain was associated with the names, to include GEN Odiemo and
thenLTGAustininPE47 7^ CW4 Nixon testified thatthe USFIGAL was distributed by
organization, to include by division at the division level, i^^^^^. CW4 Nixon testified that the
domain control ofUSF-I GAL at the division level established distributional control ofthe USFI
GAL. ^^^^^ CW4Nixon testified that the USF-1 GAL was also distributed at the Corps and
brigade levels. ^^^^^ CW4 Nixon testified thatPE47 and PE 48 constitutedaUSFIGAL
poolforaUSFIserver. 7^ CW4Nixon identified the contents ofPE 47 and PE 48 as refiecting
the contents ofthe USFIGAL CW4Nixon also testified thatPE 147 and PE148 were
representative ofthe contents ofPE 47 and PE 48,respectively.

17

35798

CW4Nixon testified thatauser would not have the ability to download the USFIGAL
or its subordinate portions withoutaspecial program or access privileges. ^^^^7^. CW4Nixon
testified that downloading the USFIGAL asawhole or in part was notafunction. CW4Nixon
distinguished betweenauser being able to view the entire USFIGAL and accessing the USFI
GAL; accessing the USFIGAL entailed the ability to remove the USFIGAL fiom the United
States Government systems. CW4Nixon testified thatauser could cut and paste the information
from the USFIGAL but that suchaprocess would not be effective. i^^^^T^ CW4Nixonalso
testified that removing the contents of the USFIGAL would not be easy without outside
sofiware or programming. i^^^^T^. SAWilliamson testified that he found the contents ofa
Microsofi GAL on the accused'scomputer. ^^^PE143. SAWilliamson also testified that the
accused searched foramacro to exportaGAL. ^^^PE143. Also, the accused createdatasker
to"exfiltrate"theUSFIGAL^^^TestimonyofMrJohnson;PE122
Assuming,
that the United States has not adduced evidence that the accused
stole the entire USFIGAL but onlyalarge portion ofit, no fatal variance exists for
Specificationl6ofChargeII. Any such variance is minor because it does not change the nature
oftheoffense.
^^^7^^ ^^^^^.^v7.^v^^^, 59 M.L 230,235 36(C.A.A.F 2004)(citations
omitted). Ataminimum, the evidence establishes that the accused stole the USFIGAL as
distributed at the division level. ^^^TestimonyofCW4Nixon.
The Delense was fiilly aware ofthe United States Government property at issue.
Furthermore, the admitted evidence constitutes at least part ofthe USFIGAL as charged in
Specificationl6of Charge II. Evidence thataportionaportion ofthe charged property was
stolen does not constituteafatal variance. i^^^^^^7^^i^^^^^.^^.^^^^/,5C.M.R.73,75 76
(C.M.A. 1952)(upholding substitutions and exceptions that reduced the number and value of
stolen items); ^^^7^^ ^^^^^.^^.7.^^,1M.J. 15,16-17(C.M.A. 1975) (holding defense counsel
was not misled where the Government submitted evidence that marijuana plants were pari ofthe
quantities covered in the specification); ^^^/^^^v. ^^^^^^^^^^^.^,174F.2d466,468(5thCir.
1949)(holding no fatal variance between "check" and "an incompleted drafi on theTreasurer of
the United States"); .^^^^^.^^ ^^^7^^i^^^^^.^v. 77^^^^.^, 65 M.J.132, 135 36(amending
specification to changeaspecifically charged quantity to "some quantity"). The Defense
contendsthat^^^7^^^^^^^.^v^^7^^7^.^,45CMR.638 (A.C.MR 1972),demonstratesthatthe
alleged variance is fatal. However, ^^7^^^^.^ held thatavariance is fatal where it completely
changes the stolen ^^.^ fiom an amount of currency toawallet. ^^^^^7^^7^.^,45 C.M.R. at 639
40. Here, the accused is charged with stealing the USFIGAL and its contents, and the evidence
demonstrates, ataminimum, thatalarge portion of the contents ofthe USF-I GAL were stolen.
Thus, any variance regarding the amount ofthe USF-I GAL that was stolen is not fatal.
IIIVALUATIONISPROVENBYINFORMATION
A. Information Is Intrinsic to Compromised Records
Defense claims about prejudice stemming fiom valuation disregard the methods of
proving valuation. Under§641,valuation may be demonstrated by face value, par value, market
value, or cost price. §641. §641protects"athingofvalue."7^. Athing ofvalue includes

18

35799

tangible and intangible items. See Fowler, 932 F.2d 306, 309-310 (4th Cir. 1991) (determining
that records and the informafion contained in the records qualify as a thing of value under § 641)
(citing Carpenter, 484 U.S. at 25; Morison, 844 F.2d at 1076-77). Information is an intangible
thing of value protected by § 641. See id.; cf United States, v. Schwartz, 785 F.2d 673 (9th Cir.
1986) (interpreting "thing of value" under § 641 to "include . .. intangibles, such as providing
assistance in arranging the merger"); UnitedStates v. Croft, 750 F.2d 1354, 1362 (7th Cir. 1984)
(holding that § 641 applies to research services as a thing of value); Burnette v. United States,
222 F.2d 426 (6th Cir. 1955) (holding services and labor performed by government employees
are punishable under § 641). Indeed, proprietary information in United States Government
records is a thing of value under §641. See Fowler, 932 F.2d at 310 (noting that information is a
species of property and a thing of value); United States v. Jeter, 775 F.2d 670, 680-82 (6th Cir.
1985); Girard, 601 F.2d at 70-71.
Valuation for a § 641 specification may be demonstrated, inter alia, by the item's market
value, thieves' market value, or cost of production. Market value is "approximately what it
would cost to purchase the same or similar property in the marketplace." United States, v. 50
Acres of Land, 469 U.S. 24 (1984); see Muser v. Magone, 155 U.S. 240 (1894) (defining market
value as the "price at which the owner of the goods, or the producer, holds them for sale; the
price at which they are freely offered in the market to all the world; such prices as dealers in the
goods are willing to receive, and purchasers are made to pay, when the goods are bought and
sold in the ordinary course of trade"). The thieves' market value is the price at which the good
may be sold on the illegal black market. See, e.g.. United States v. Hood, 12 M.J. 890, 891-92
(A.C.M.R. 1982); see also United States v. Ligon, 440 F.3d 1182 (9th Cir. 2006) (defining the
market value approach to include the thieves' market). The cost of production is the price the
producer incurred to create or produce the good. See, e.g.. United States, v. Walter, 43 M.J. 879,
885 (N-M. Ct. Crim. App. 1996). The cost of production has been applied to calculate the value
of deleted databasefilesfor which "no readily ascertainable market value" existed. Id.
Additionally, the cost of production includes costs producing and supporting the use of
the records. See Zettl, 889 F.2d at 54 (noting that cost price includes the cost of photocopying,
transportation, and other actual costs of the documents); Walter, 43 M.J. at 884-85 (deciding that
the personnel or labor costs of producing and reproducing thefileswas reasonable). The
Defense relies on Zettl to argue that the scope of valuation should be narrowed. See Defense 641
Motion \ 44. However, the accused is charged with stealing or converting databases, to include
the records contained therein, and not documents as charged in Zettl. See Charge Sheet; Zetd,
supra. Given the infiastructure necessary to support the databases and the records contained
therein, the costs of producing and maintaining the databases are relevant under § 641. See, e.g.,
PE 115; PE 116; PE 131; Testimony of CW4 Nixon; Testimony ofMr. Wisecarver.
The basis of establishing a market value, to include the thieves market, requires an
analysis of the characteristics of the acmal goods. See, e.g.. Hood, 12 M.J. at 891-92 (comparing
values of stolen goods to values received on black market of similar goods). The market value is
determined by the value the participants place on the record, to include its information. See
Ligon, 440 F.3d at 1184 ("[P]roperty value is determined by market forces . . . . This gives § 641
its obvious, and certainly its practical, meaning, namely the amount the goods may bring to the
thief").

19

35800

The contents ofthe record dictate its value. ^^^Testimony ofMr. Lewis. No open
market for United States Government information exists. ^^^^7^. Further, bulk amounts of
information have increased value in comparison to smaller collections ofrecords. i^^^^T^. Where
valuation can be proven by the value ofthe goods inamarket, evidence that the records are
valuable to adversaries based on their contents does not prejudice the accused. ^^^^^^^7^^^^^^^.^
v ^ ^ , 6 2 5 F2d,186,191 92(6th Cir. 1980)(decidingthatadeterminationofathing ofvalue
can rely on the readily ascertainable and quantifiably components ofthe stolen or converted
thing ofvalue). Similarly,evidence ofthe cost ofproduction for the databases and records
contained therein cannot be separated fiom the information because the information requires
protection.
Testimony ofMr.Lewis;
The Defense attacks Mr.Lewis's
credibility,but the Defense Motions are not the appropriate forum for argument regarding
witness credibility. ^^^RCM917(d). Thus, evidence ofvalue ofthe records, to include their
information, poses no prejudice to the accused.
B. Defense Has Had Ample Notice ofValuation Based on Information
The appellate record demonstrates that the Defense has been on notice that the United
States intended to elicit testimony fiom Mr.Lewis on the value of government information since
well before the start ofthis trial, and specifically that the United States intended to offer him as
an expert in this field. Below are excerpts fiom both the United States and Delensefilingsthat
outline this notice:
On 26 October 2012, the United States stated in its witness list ^2 with explanations,
"^Mr.Lewis^will testify about counterintelligence and the value of information, including
classified information concerning the value ofgovemment information." AECCCLXVIIat8.
On 12December 2012, the United States stated in its witness list ^3 with explanations,
"^Mr.Lewis^will testify about counterintelligence and the value ofinformation, including
classified information concerning the value ofgovemment information." AECDXXXVI;AE
CDXXXVIIat8
On31January 2013,the United States stated in its witness list ^4 with explanations,
"^Mr.Lewis^will testify about counterintelligence and the value ofinformation, including
classified information concerning the value ofgovemment information." AECDLXXV;AE
CDLXXVIat7
On31January2013,the United States stated in its Gmnden response that Mr. Lewis
"will testify about counterintelligence and the value ofinformation, including classified
information concerning the value ofgovemment information." AECDLXXlX;AEDLXXXat
18
OnlFebmary 2013,the United States stated in its Gmnden response corrected copy that
Mr.Lewis "will testify about counterintelligence and the value ofinformation, including
classified information concerning the value ofgovemment information." AECDLXX1X;AE
DLXXXatl8

20

35801

On22 Febmary 2013,the Defense statedin its MRE 505(h)noticethatMrLewis "isa
counterintelligence specialist with DIA and has worked in the field generally for many years."
AECDXCatl4. The Defense explains that the United States provided the following as an
explanation ofhis testimony-"He will testify about counterintelligence and the value of
information, including classified information concerning the value ofgovemment information."
7^. The defense further states:
The matters covered by the defense in cross examination wih fall
within the general outlines provided bythe Government above.
The defense reasonablyexpects to discuss the experience of Mr.
Lewis on other cases. That experience gives Mr. Lewis the
expertise to opine as to the value ofgovemment information.
On24 April 2013,the Defense stated in its Grunden filing that Mr.Lewis will testify
aboutthe "valueofCIDNE^djatabases, charged SOUTHCOM information, andthe USFI
GAL." AECXXVatl6. In the same filing, they also stated Mr.Lewis will "testify about how
the value of those items and how their value is determined."7^ Additionally,the Defense stated
that he will testify about money offered for the information in the databases and "generally about
how the information, even if dated,will be of some value" to foreign entities. 7^
OnlOMay 2013,the United States filed its notice of accounting of discovery and expert
witnesses, which stated next to Mr.Lewis'sname that "^tlhe United States may qualify this
witness as an expert in counterintelligence and the value ofnational security information^.j" AE
CXLIIIat4
On 13May 2013,the Defense stated in its corrected copy ofits Grunden filing that Mr.
Lewis wih testify about the "value of ClDNE^d^atabases, charged SOUTHCOM information,
and the USFIGAL"AECXVatl6. In the same filing, they also stated Mr. Lewis will "testify
about howthe value of those items and how their value is determined."7^. Additionally,the
Defense stated that he will testify about money offered for the information in the databases and
"generally about how the information, even if dated,wih be of some value" to foreign entities.
7^
On 15May 2013,the United Statesfiledacorrectedcopy ofits notice of accounting of
discovery and expert witnesses,which stated next to Mr.Lewis'sname, "The United States may
qualify this witness as an expert in counterintelligence and the value ofnational security
information^B^"AECLXIIlat4
Thus, the Defense has had ample notice about the United States'intention to rely on the
information contained in the compromised records to establish valuation. Therefore, the Defense
has not suffered any prejudice.

21

35802

CONCLUSION
The United Stales submitted evidence relevant to the§64f specifications that was
admitted. The Defense argues that the United States has failed to satisfy the standard set forth in
RCM9I7(d). The admitted evidence establishesareasonable inference that the accused stole
and converted the databases and records listed in the§641specifications. The Defense
arguments that the§64Ispecifications constitute fatal variances lack merit because the evidence
proves the contents ofthe databases and the records were stolen or converted. The evidence
doesnot constituteamaterial variance. Additionally,the Defense had adequate notice and
ability to prepare the accused'sdefense for trial.

^ ^ ^ ^ ^

ALEXANDERS.^^^ELTEN
CPT,JA
Assistant Trial Counsel
Icertifythatlseiv^ed or caused to be servedatrue copy ofthe above on Ml. David
Coombs, CivilianDefense Counsel via electronic mail, on I I July 20f3.

j^wtk
ALEXANDER S. VON ELTEN
CPT, JA
Assistant Trial Counsel

22

35803

UNITEDSTATESOF AMERICA
Prosecution Response
V.

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

to Defense Motion for
Directed Verdict: Article 104
11 July 2013

RELIEF SOUGHT
The prosecution in the above case respectfully requests the Court deny the defense
request to enter afindingof not guilty as to the Specification of Charge I (pursuant to Rule for
Courts-Martial (RCM) 917(a)).
BUItDEN OF PERSUASION AND BURDEN OF PROOF
A motion for afindingof not guilty shall be granted only in the absence of some
evidence which, togetlier with all reasonable inferences and applicable presumptions, could
reasonably tend to establish every essential element of an offense most favorable to the
prosecution, witli an evaluation of the credibility of witnesses. RCM 917(d).
FACTS
The prosecution began its case in chief on 3 June 2013 and rested on 2 July 2013. The
defensefiledits motions for directed verdict on 4 July 2013.
WITNESSES/EVIDENCE
PELOMPF
PE 5: 35F Program of Instruction and Lesson Plan
PE 6: 35F AIT Student Evaluation Plan
PE I I : Hard drive - DN #073-10 Item 1 - Classified (Accused's Extemal Hard Drive)
PE 12: Hard drive - DN #073-10 Item 1 - Classified (.22)
PE25: Poweipoint "Operations Security" did 13 Jun 08
PE 30: Wired.com chat logs (Manning/Laino)
PE 35: Stipulation of Expected Testimony, Elisa Ivory, 10 May 13
PE 36: Stipulation of Expected Testimony, SSG Alejandro Marin, 30 May 13
PE 42: Readme.txt
PE 43: Chaos Communication Congress report by SSG Matthew Hosburgh, dtd 7 Jan 2010
(declassified)
PE 45: ACIC Special Report, Wikileaks.org-an Online Reference to Foreign Intelligence
Services, Insurgents, or Terrorist Groups? (unclassified w/out references)
PE 51: Power Point slides "Issue: Islamic Extremism"
PE 52: Power Point shdes "Information Security AR 380-5" from 305th MI Battalion
1

APPELLATE EXHBIT C>C?0
PAGE REFERENCED:
PAGE
OF
PAGES

35804

PE 58: Email fiom Manning to Linesman and Hack, dtd 12JanlO-Classified
PE 59: MaimingNon-Disclosure Agreement witnesses by Rubin (aka Ivory), dtd7Apr 08
PE 60: Maiming Non-Disclosure Agreement witnessed by Balonek, dtd I7Sep 08
PE61:CD ContaininghitelinkLogs for .22and.40 Classified
PE63:ACICWebsiteLogs
PE64:ACICWebseiverLogs
PE 70: Stipulation ofExpectedTestimony,Mr.Peter Artale
PE85:Intelink Log Summary(C3 and NCIS Documents)
PE99:NC1S^I1R
PE 120: Buddy List fiom PFC Manning'sPeisonal Mac Listing Press Association Contact
Infbmiation
PEI23:Chats recovered fiom PFC Maiming'sPersonal Mac between Press Association and
daw^gnetwork
PE 127: VoIumes.txt
AE81:CourtRuling,DefMotionDismissTheSpofChf,FTSAO,26Aprl2
AE410: Court's Draft Instructions
DEJ:ReportofExaminationofPFCMamiing'sPersonal Laptop Classified
Testimony of CPTFulton
Testimony ofCW2 Balonek
Testimony ofCW2 Hack
Testimony ofMr. Hosburgh
Testimony of Mi . Johnson
Testimony ofMr.Madrid
Testimony ofMr.Moul
Testimony ofSAMander
Testimony ofSA Shaver
TesthnonyofSA Smith
TesthuonyofSFC Anica
EEGAEAUTHORITV AND ARGUMENT
The sole allegation in the defense's motion withregard to A^ticleI04 is that the
prosecution did not present evidence thatthe accusedhad "actual knowledge" that by giving
inforniation to WikiLeaks, he was giving infomnation to an enemy ofthe Unites States. Defense
RCM917Motionfi:^rAificIeI04atL
Only "some evidence which, together with all reasonable inferences and applicable
presumptions, could reasonablytend to establishevery essential element ofan offense charged"
is necessary to withstandamotionforadiiected verdict. RCM9I7(c). The Coui^ shall viewfiie
evidence "in the light most favorable to the prosecution, without an evaluation ofthe credibility
ofwitnesses."7^.;.^^^^^^^^^^7^^^^^^^.^v.7^^^^^^, 40 M.L 373 (C.M.A. 1994) (upholdingthe
military judge'sdecision not to enterafinding of not guilty because the testhnony ofthree
witnesses, constmed in the light most favorable to the prosecution, could reasonably tend to
establish the overt act). Courts agree the "some evidence" standard to surviveamotion fora
finding ofnot guilty isalow one.
^^^7^^^^^^^.^^^..^.^^^^^^^^^-^^^^^^^^^^,2013 WL 561356 (1^M.Ct.Ciim.App.2(^I3)(concuningwith the military judge who "noted repeatedly while healing

35805

argument on the RCM 9I7motion^that^the standard for surviving suchamotion is very low");
.^^^^^.^^^^^7^^^^^^^.^^^..7^^^^^^^.^,59M.L 893,898(A.C.C.A.2004)(encouiagingtii^^
view the standard used to decide whethertograntamotion fbrafinding of guilty asamirror
imageofthe standard used to decide whether to give an instruction on an affirmative defense);
^^^^^^^^^^^.^v^^^^^^^^^^,1994WL7I1894(AFCt.CrimApp.l994)(qi^^^^
(noting that "^t^hemilitai^^ judge was obviously correct in denying the motion fbrafinding of
not guilty under the Iow,^some evidence'standard set out inRCM917(d)").
According to the Court's drafi instructions forthe Specificafion ofCharge I,
"knowii^gly"iequiiesactualknowledgebytheaccusedthatbygivingthe
intelligence to the 3rd party or mtei^uediaiy or in some other indirect way,that he
was actually giving intelligence to the enemytluough this ii^diiect means. This
offense requires that the accused hadageneral evil intent in that the accused had
to know he was dealing, directly or indirectly,with an enemy of the United States.
'I^iowingly'means to act voluntarily or deliberately. Apersoncannot violate
ArticleI04 by committing an act inadvertently,accidentally,ornegIigently that
has the effect ofaiding the enemy.
Appellate Exlubit(AE)4I0at2;.^^^^^^.^^^^^^^^^^^^^^^.^.^^..^^^^^^^^^^^^
1956). The explanation of'^iow^ledge" in Articlel04(c)(5)(c)fbr "Giving intelligence to the
enemy" also states thaf'Actual knowledge is required but may be proved by circumstantial
evidence." Article 104(c)(5)(c), Unifbim Code ofMilitai^ Justice (UCMJ). This definition is
quoted in "The Law: Article 104" portion ofthe Court's Ruling on the Defense Motion to
Dismiss forFailure to State an Offense. AE81;.^^^^^.^^RCM918(c)(Findings may be based
on direct or circumstantial evidence.). "There is no general rule for detei^ining or comparing
the weight to be given to direct or circumstantial evidence." RCM918(c), discussion.
Direct or circumstantial evidence satisfies the "some evidence" standard.
United Statesv.
Paikei,59M.L195(C.A.AF.2003);UnitedStatesv.Varkonyi,645F2d453,458 (5thCir
1981). Although not explicitly enumerated in the drafi instruction of'knowingly" for Article
104, in the draft instruction for "knowledge" in Specificationlof Charge II the Court
specifically notes that,"I^now^Iedge, like any other fact, may be proved by circumstantial
evidence, including the accused's training, experience, and militaiy occupational specialty." AE
410at3.
The prosecution elicitedaplethoia of evidence in its case in chiefto prove that the
accused had the requisite knowledge for the Specification of ChargeL The evidence that the
prosecution presented to establish the accused's actual knowledge can be broadly defined under
three categories: (l)Militaryeducationandtraining; (2) inforniation the accused reviewed
during the course ofhis misconduct; and (3)statements by the accused.
1. Military Education andTiaining
The defense acknowledged that the prosecution introduced evidence that, inhis training,
the accused was instructed that the enemy uses the internet generally.
Defense RCM917
Motion at 2. The defense, how^ever, argues that the prosecution has not proffered any evidence

35806

that shows that the accused yvas instructed thataparticular enemy looks at or uses the WikiLeaks
website.
Thepiosecutionnotesafactt^alinaccuiacyinpaiagraph5ofthedefense'sargument In
response to the defense in cross-examination, Mr.Johnson testified he did not look at or recover
any websites that were associated with tei^orism or withahatred of America or anti-American
behefs in his forensic examination ofthe accused's personal Macintosh computer,iatherthan
what the defense proffered. Testimony ofMr.MarkJohnson. Mr.MarkJohnson did not say
"that his forensic investigation ofPFC Manning's computerrevealed no searches for the enemy,
anything related to terrorism, or anything remotely anti-American." Defense RCM 917Motion
fi:^rArticlel04at2.
a. AlTTiainin^
The prosecution established in its case-in-chiefthat the accused is an allsouice
intelligence analyst (35F). ^^^^^.g^.,ProsecutionExhibit(PE)1(OMPF).
The prosecution presented evidence that during AIT,the accused coimuitted an
operational securify(OPSEC) violation and, aspartofcorrective training, was specifically
required to research and biiefthe importance ofOPSEC and the potential damage or harm to
national security by having an OPSEC violation. ^^^Testimony ofMr. Madrid. Tlie accused
presented tluee differentfypesof collective tiaining(abrief,aPower Point, andawrittenreport)
that covered the importance ofOPSEC.^^^Testimony ofMr. Madrid; PE 25 (Power Point
presented bythe accused on OPSEC). The accused's Power Point was found on his external hard
drive, which was recovered fiom the Accused's CHU in Iraq.^^^TestimonyofSA Smith;
Testimony ofMr.Jolmson; DEL In his Power Point, the accusednoted that, among others,
adversaries included foreign govermnents,tei^orists, activists, and hackers. Testimony ofMr.
Madrid; PE 25 (Power Pointpresented bythe accused on OPSEC). In his Power Point, the
accused also documented "Coimnon OPSEC Leaks" which included the Internet and concluded
that disclosure ofinformation, including posting on the Internet, must be avoided and that one
must use common sense because there are many enemies and it isafiee and open society. 7^.
The prosecution also presented evidence on the accused's training as an all-source
intelligence analyst and that training iiicluded training on the identities of tei^oristgioups,which
included Al-^aeda.^^^Testimony ofMr. Moul; PE5(35F Program oflnstiuction and Lesson
Plan); PE6(35FAITStudentEvaluationPlan);PE51 PowerPoint slides on theenemy).The
prosecution also presented evidence thatthe accused was trained that the enemyused the internet
and that anything thatthe enemy can use or piece together to use againstthe United States should
be protected, in include, among other things,PII and unit identification and movement
information. ^^^Testimony ofMr.Moul; PE5(35F Program oflnstiuction and Lesson Plan);
PE6(35FAITStudentEvaluationPlan);PE51(PowerPoiirtslidesontheenemy);PE52
(PowerPointslidesfiomAITonINFOSEC);PE36(Stipulationof,ExpectedTestimony,SSG
Marin);PE35(StipulationofExpectedTestimony,Ms.Ivory).Forexample,sIide7Lwhichis
supplemented by the text in the corresponding 35FAIT lesson plan, and was tauglitto the
accused by Mr. Moul states,"The enemy will attempt to discover how and when we are
conducting operations, knowing this, we must protect our activities from detection.Wedo this

35807

by: ^Identifying-Criticallnfbrmation^Analyzing-Thieat." ^^^PE 52 (Power Point slides
fiom AITonfNFOSEC);Testimony ofMr. Moul; PE5(35F Program oflnstiuction and Lesson
Plan). Slide 72 defines "Critical Information" as, among other things, installationmaps^ith
highlights ofdesigi^ated points ofinterest,SOPs, TTPs, unit capabilities and intent, and
peisonal^familyinfi^miafion 7^ Slide 73, entitled "PreventDisclosures" says "DON'T
DISCUSSOPERATIONALACTI^ITESONTHEWEB" 7^ Tiainingslide73thatthe
accused received at AITgoes on to say,"Ensure information posted has no significant value to
tl^eadversaiy";"Alw^ays assume the adversary is reading your material"; and "Remember it is
called the World Wide Web foraieason." 7^. The accused also received training on the
different types ofrecruiting utilized by terrorist organizations, particularly by Al-(^aeda, and that
the number ofteiroristwebsites have jumped fiom less thanlOO to as many as 4,000 in the last
ten years and many insurgency gioups have many sites and message boards to help their
network. Testimony ofMr.Moul; PE51 (Power Point slides on the enemy and their use of the
Internet). The accused had to passatest on INFOSEC^OPSEC in orderto proceed inline course.
Testimony ofMrMoul;PE5(35FProgramofInsfiuctionandLessonPlan);PE6(35F AIT
StudentEvaluationPlan).
The training demonstrates that the accused knewwho the enemy was and that the enemy
used the internet. Tl^e accused passingatest onfi^FOSEC^OPSECand his corrective training
fiirther demonstrate that he was not only taught the information, but he learned it and had an
appreciation for its importance. Aieasonable inference follows that since Wikileaks.oig isa
website on the Internet, and the accused knewthat the enemywas looking for any and all
information on the Internet, thatthe Accused knew that by putting infbi^ation on the Internet, he
was giving the information to the enemy. This is particulaily true in light ofthe information that
the accused was giving toWikileaks.oig,which he was specificallytiainedw^asofinteiest to the
enemy. The accused's know^ledgeofenemy receipt is an inevitable conclusion given the
evidence the prosecution presented on the accused's knowledge ofthe type of website that
Wikileaks.oig was at the time the accused unlawfiilly transmitted the mformation to them
(discussed below). This is circumstantial evidence ofthe accused'sactual knowledge.
b. Non-Disclosure Agreements
In addition, the prosecution offered evidence that the accused had to sign non-disclosure
agreements (SF312). ^^^Testimony ofMr. Moul; PE 35 (Stipulation ofExpectedTestimony,
MsIvoiy);PE59(AccusedNDA,dtd7Apr08); Testimony ofCW2Balonek;PE60 (Accused
NDA,dtdl7Sep08). The nondisclosure agreements described the responsibilities and special
trust and confidence associated with having access to classified infoiiuation. ^^^PE59(accused
NDA,dtd7Apr08);PE60(accusedNDA,dtdl7Sep08).Thenondisclosuieagieements
explain the potential damage and consequences associated with the unauthorized disclosure of
that information. 7^. Furthermore, the non-disclosure agreements highlights that the classified
information was the property ofthe US government. 7^. The significance ofthe NDA was also
explained to the accused. Testimony ofMr. Moul; PE 35 (Stipulation ofExpectedTestimony,
Ms. Ivory);Testimony of CW2 Balonek. The accused even raised his right hand and vowed to
uphold the responsibilities contained in the nondisclosure agreement. ^^^PE35 (Stipulation of
ExpectedTestimony,Ms.Ivory). Understanding and signing the non-disclosure agreements
fiirther ensured that the accused understood the importance ofprotecting classified information

35808

and the consequences ofits unauthorized release. This is circumstantial evidence ofthe
accused's acttial knowledge.
c. Additional Information on the Accused's External Hard Drive
The prosecufion admitted the accused's external hard drive. See PE 11. That external
hard drive contains a wealth of training informafion in addition to the accused's OPSEC
slideshow discussed above. Id. Specifically, it contained the following:
- the accused had a Microsoft PowerPoint brief titled "Insurgent Propaganda TTPs" on
his personal HDD. PE 11 (\PFC MANNING External HDD\0055-28MaylO\MANNINGExternalM Manning\Manning\Documents\Analyst\RefeienceMaterial\Lessons Learned\Lessons
Learned\Tlireat\UFOUO_Iraql_Pi-opagaiida_TTPs_Brief_26Jan05.ppt).' Slide 17 says
"Insurgent Information operations (10) becoming increashigly sophisticated - videos on the
internet and favorable news coverage on Arab media Al Jezeera (see list of pro-insurgent
websites)." Id.
- the accused had a copy of FM 2-0 titled "Intelligence" on his personal HDD. PE 11
(\PFC MANNfi^G External HDD\0055-28May10\MANNfi^G-Extemal\1
Maiuiing\Mamiing\Documents\Analyst\Field Manuals\FM_2_0-intel.pdf). The document states
adversaries "weapomy may range from a computer connected to the Internet to WMD." Id.
- the accused had a copy of AR 525-13 titled "Antiterrorism" on liis personal HDD. PE
11 (\PFC MANNING Extemal HDD\0055-28May 10\MANNfNG-External\1
Manning\Manning\Documents\AnaIyst\0&I\OIP\SOP's_AR's\AR525_13 Anti-TeiTorism.pdf).
It states that terrorists use "instances of web site tampering to further their cause." Id.
- the accused has a copy of FM 7-100.1 titled "Opposing Force Operations" on his
personal HDD. PE 11 (\PFC MANNING External HDD\0055-28May10\MANNING-Extemal\l
Manning\Manning\Documents\Analyst\Reference Material\pdf\fm7_100xl.pdf)- This document
states "Rapid advances in technology have produced an incredibly complex global information
environment. Information and communications technologies have grown exponentially in recent
years. Satellite and cellular communications, direct-broadcast television (expanding the
awareness of events, issues, and military activities), personal computers, global positioning
system (GPS) technologies, wireless communication capabilities, and the Internet aie a few
examples of the capabilities widely available to nations, as well as independent organizations and
individuals. Given such advances, the capabilities of both the OPFOR and its potential
adversaries are increasing in both sophistication and lethality. Tlie OPFOR tries to exploit such
technologies to gain the operational advantage." Id.
- the accused has a copy of FM 7-100.1 titled "Opposing Force Operations" on his
personal HDD. PE 11 (\PFC MANNING External HDD\0055-28May10\MANN1NG-External\l
Mamiing\Maiming\Docuinents\Analyst\Reference Material\pdf\fm71 OOx 1 .pdf). This docmuent
' PE 11 and PE 12 are compilation exhibits that were admitted and contain computer images ofthe accused's
external hard drive (PE 11) and ".22" SIPRNET computer (PE 12). The prosecution can provide the Court with the
appropriate viewing equipment or caii print each item referenced within this motion for the Court,

6

35809

states "In contrast to other forms ofwaifaie,IW^(InfoimationWarfare)^actions might occur
without access to largefinancialresources or backing orwithout^tate sponsorship. Information
weapons could be sofiware logic bombs or computer womis and vimses. IW could be conducted
with such easily accessible means such as cellular telephones and the Inteinet."7^^.
-the accused hasacopyofFM7100.1 titled "OpposingForce Operations" on his
peisonalIIDD.PE1I(^PFCMANNlNGExtemalHDD^0055 28MayI0^MANNlNGExtemal^l
Maiming^Manning^ocuments^nalyst^eferenceMateiial^pdf^fiu7 lOOxI.pdf). Chapter5of
this document provides an oveiaiching discussion oflnfbimationWarfare. 7^.
- the accused hasacopyofFM7-100.4titled "Opposing Force Organization Guide" on
liispersonalHDD.PE11(^FC MANNING ExternalHDD^0055 28May10^ANNING
Extemal^IManning^Manning^ocuments^nalyst^eferenceMateiial^pdf^M7-100 4.pdf).
AppendixCofthis document, in providing an exampleofalocal insurgent organization, states
that "Depending on the size, nature, and focus ofthe insurgent organization, the direct action cell
(IW) may be capable of several functions. Some example fiinctions...^include assisting^...in
the cyber-mining for intelligence. All ofthesefiinctionsaieintegrated to further short-and longrange goals."
- the accused hasacopyofFM7-100.4titled "OpposingForce Organization Guide" on
hispeisonalHDD.PE1I(^FCMANNINGExterna1IIDD^0055 28May10^ANNING
External^lMaiming^Manning^ocuments^nalyst^eferenceMaterial^pdf^FM 7-100-4.pdf).
AppendixCofthis document, in providing an exampleofalocal insurgent organization, states
"Close coordination is maintained with the IW cell for Internet communications."7^.
the accused hasacopyofFM7-I00.4titled "Opposing Force Organization Guide" on
hispet^onalHDD.PEf1(^FC MANNING ExternalHDD^0055 28May10^ANNfNG
Extemal^1Manning^Manning^ocuments^Analyst^eferenceMateiial^pdf^M7-100 4.pdf).
AppendixCofthis document, in providing an exampleofalocal insurgent organization, states
"The mteinetisapoweiful recruitment tool. The recruiting cell maintains close coordination
witli the infomnation warfare cell."7^
The accused's possession ofall the above information is additional circumstantial
evidence that the accused knew and understood ah of the above information, leadingto the
reasonable inference that the accused knewthat by disclosing information to WikiLeaks.org he
was giving the information to the enemy,and specifically Al-^aeda.
d. Accused ^nowled^eofSIGACTs
In addition to oflering evidence on the type ofinfbi^nation the accused would be seeking
on the Internet, the prosecution also offered evidence that the accused was aware that SlGACTs
included the type ofinformation that the enemy would be seeking and that the accused knewthat
the SIGACTsw^eie valuable and useful intelligence as discussed below. Theaccused
ackirowledged the value by stating in the text file that accompanied the disclosed CIDNE
databases on the accused's SD Card stating,"Tlus is possibly one of the more significant

35810

documents of ourtime,ietuoving the fog of war, and revealing the true nature of21st century
asymmetiicwarfare."PE42(Readme.txt);.^^^TestimonyofSAShavei
The prosecution offered numerous witnesses to testifyregarding the accused's knowledge
ofSIGACTs.^^^,^.^.,Testimony ofSFCAnica;TestimonyofCW2Hack;TestimonyofCPT
Fulton;Testimony of CW2 Balonek. Accordingto SFC Anica, it was paitof the accused'sjob,
mgaiiison, to combine information fiom the SIGACTsand pick out the most relevant and
huportant data and then create Pow^eiPoint presentations to biiefthe S2; vehicle-bom lEDs were
particulariysignificantatthetime TestimonyofSFCAiuca.AccoidingtoCW2Hack,the
accusedhadmanySIGACTsorganizedinliisfolderonhisumt'ssharedriveinanextiemely
meticulous maimer. Testimony of CW2 Hack. The SIGACTsand other mtelligence reports
were oigamzed by geographical locations thatweietiedto an enemy threat group that the
leadership had prioritized. 7^. The accused knew ofthe value and usefulness ofSIGACT reports
when conducting an analysis of umtactivity,as he used the SIGACTsto create work product.
^^^^7^;PE58. Spccifically,theaccusedgaveCW2HackaSIGACT report of anIEDattackthat
hadaunit in the same area of operation that 2d Biigade,10th Mountain was in, two years before
they airived to assist CW2 Hack with his targeting mission as the Accused thougl^t the SIGACT
would be assist in the capture ofahigli value taiget.7^. The attack described the type of
weapon system that was used, as wefi as damage and equipment that was used. 7^. It also
included an S2 assessment ofthe event. 7^. Similai1y,the accused pulled SIGACTsfbr CPT
Fulton, which would typically focus on lEDs, small arms, and direct and indiiectfiie.
Testimony ofCPT Fulton. The accused would mine the information, organize the information,
sort the information, and then plot the SIGACT infoiiuation on the map, so it was represented
visually and so analysis could be conducted based on enemypatterns and engagement aieas
represented. 7^. The accused also pulled SIGACTsfiom CIDNE, and organized them on an
excel spreadsheet to show enemy trends. 7^ CPTFulton also testified that, in gairison, the
Accused helped her prepaic the intelligence portion of the OPORD for the deployment.7^.
Specifically,the accused gave CPTFulton the basis ofknowledge on all of the enemy tl^eat
gioups.7^. Finally,according to CW2 Balonek, the accused put together an intelligence product
that compared the past three years ofliaq SlGACTs, and specifically looked at locations of
difierent types ofattacks, such as lED attacks and small arms fire against convoys. Testlmonyof
CW2Balonek
The evidence offered by the prosecution isareasonable iirference to showthe accused
ki^ew the value ofthe SIGACTS fiom an intelligence point of view. He knew that individual
SIGACTS could be used to create actionable intelligence products for the Commander. He also
kirewthe value ofhaving numerous SIGACTsand the products that could be created fiom the
SlGACTs. HeknewagioupofSIGACTScouldbeusedtodecipherpatternsofbehaviorof
fiiendly and enemy units. Just as the accused would use SIGACTS to decipher enemy tactics,
techniques, and procedures (TTPs), the accused knewthat the enemy would find the same value
in the ability to decipher our TTPs, and would find similar value in the ability to create
actionable intelligence products fiom the SIGACTS. All the above leads toareasonable
inference thatthe accused knew of this value priorto disclosing the SIGACTstoWikileaks.oig
to be posted on the internet, to be accessible to all people globally,including the enemy. The
above also leads toareasonable inference that the accused knewthat this information was

35811

exactlythetypeofinfoimationthattheenemywouldseekoutandaccessandthattheenemy
would have access to all the information as leaked on Wikileaks.oig.
2. Information Accused Accessed During the Course ofhis Misconduct
a.ACICRenort
The defense acknowledged that the prosecution introduced evidence to show that the
accused accessed the ACICrepoit titled "Wikileaks.org—An Online Reference to Foreign
Intelligence Services, Insurgents, orTeiToiist Groups?)" charged inSpecification 15 of Charge
IL
Defense RCM917Motion at 2. The defense, however, argues that accessing this article
does not show that the accused had actual knowledge that by giving infbimation to Wikileaks, he
was giving it to the enemy. 7^^. The defense argues howthe accused interpreted the report in
their motion; however, there is no evidence ofthat interpretation bythe accused. 7^ These are
the defense'sinteipretationsandreserved for argument, thus not appropriate fbraRCM917
motion. RCM917(c)iequiies the Court to view the evidence "in the liglrt most favorable to the
prosecution."RCM917(c).
The puipose of theACIC report, which was published on18March 2008,was to "assess
the counterintelligence threat posed to the US AmrybytheWikileaks.org Web site." PE45
(UnclassifiedACIC Report). TheACIC report describes in detail what the author's research of
Wikileaks.org revealed about Wikileaks.oig, their actions, and how they operated in 2008.
PE45(UnclassifiedAC1CReport).The first bulleted"I^ey Judgment" ofthe ACIC reportisthat
"Wikileaks.oigrepiesentsapotential force protection, counteimtelligence, OPSEC, and
INFOSEC thieatto the US Ai^ny."PE45^nclassifiedAClCReport).Thesecondbulletstates,
"Recent unauthorized release ofDoD sensitive and classified documents provide FISS,foreign
teiTorist groups, insurgents, and otherfbreign adversaries with potentially actionable information
fortargetingUSfbices."7^. The sixth bullet says that "Wikileaks.org most likely has other
DoD sensitive and classified information in its possession and wih continue to post the
information to the Wikileaks.org Website." 7^^. The ACIC report goes on to discuss the DoD
and classified infomnation that Wikileaks.org has released in the past and how Wikileaks.org
posts all information that they receive without editorial oversight. 7^. TheACIC report
concludes that "it must also be presumed that foreign adversaries will review and assess any
DoD sensitive or classified information posted to the WL.oig web site" and warns of adversaries
increasedabilitytocompleteiapiddata compilation tomoieefficientlydevelopactionable
infomnation for their use for intelligence collection, planning, ortaigeting purposes.
Tire prosecution also offered evidence that the accused searched for Wikileaks.org or
variations ofthattermoverlOO times betweenlDecember 2009 and 15Maich2010on
SIPRNET.TestimonyofSAShaver;PE61 (Intelink logs).Thelogsfurtherprovethathe
fiirther supplemented his knowledge ofWikileaks.org through these searches. 7^^. The
prosecution also admitted the image ofthe accused's .22 comptiter. ^^^PE12. That image
contains an email that the accused sent to members ofthe S2section(CPT Lim, CPT Martin,
CW2El^esman,1LTGaab,CW2Balonek, SPC Madaras, SPC Cooley)on15March2010,
classifiedFOUO.PE12(^FCMANNINGPiimaiySIPR^251 27May10^2251
27May10^C^DocumentsandSettings^bradley.manning^Loca1Settings^pplication

35812

Data^iciosoft^Outlook^archive.pst^ootfolder^TopofPersonalFolders^Deletedltems^Sent
Itemsl^^UNCLASSIFlED^BFOR OFFICIAL USEONLY^ACICCyberCollabeiationPoital
^UNCLASSIFIED^^OR OFFICIAL USEONLYj).Inthatemail,thcaccusedstates,
"Occasionally has good hits fiom extremist websites in ourOEl Found it earlier this evening.
http:^^acicpoital.noith-inscom.aimy.smil.mil^cybei7default.aspx". 7^. According to thcACIC
logs, theACICreport(ProductID^RB08 0617)isavailableatthe URL "http:^^acicpoitalnorthinscom.aimy.smil.mil^cybei7default.aspx''and the accused liiiked to theACIC report tl^ough
that URL.^^^PE64(ACICWebserverlogs);PE 45 (UnclassifiedACIC Report).
Tlie prosecution offered evidence that the accused accessed die website containing the
ACICreport on1December2009,29 December 2009,lMarch2010,and7Maich2010.PE 70
(Stipulation ofExpectedTestimony,Mi. Artale); PE 63 (ACIC metrics for theACIC report).
The prosecution also offered evidence that the accused viewed the ACIC document on14
February 20I0andIMarch2010.TestimonyofSAShaver;PE61(Intelinklogs).
Tire above evidence leads toareasonable inference tliat based on the accused's repeated
access to the report, he not only read the ACIC report charged in Specification15of Charge II
but that he read it multiple times. This is circumstantial evidence that the accused was put on
notice that by giving information to Wikileaks.org, the enemy would have access to and use the
information. The accused was also put on notice by the ACIC report that Wikileaks.oig was not
alegitimate media organization, since, according to the report,Wikileaks.oigposts all
information they receive with no editorial oversight. PE45(UnclassifiedACIC Report). It isa
reasonable inference that given the accused's specific training on AL^aeda, he knewthe enemy
would be AL^aeda based on the time period ofthe misconduct and the accused's knowledge and
training on who our enemy was and our enemy's use ofthe Internet.
b l I R 5 391 001408
SimilaiIy,tliepiosectition offered evidence ofthe accused's knowledge thiough1IR5391
001408. The subject of this IIR was "IntemetWeb Postings of Classified and for Official Use
Only Documents."PE99(IIR5391 001408).TheIIR discussed Wiki1eaks.oig,andaccoiding
to file report, in December 2006,"Wikileaks.oig was established to encourage the anonymotis
posting ofsensitive government and corporate documents." PE99(IIR5391 001408);.^^^^^.^^
Testimony ofSA Mark Mander. Accordingto the IIR,"Wikileaks.orgself^desciibesas(quote)
an tincensorable Wikipedia for untraceable mass document leaking and analysis(unquote)." 7^.
According to the 2008 report, numerous classified and FOUO documents have been posted and
continue to be available onWikileaks.org and its mirror sites. 7^
The prosecution offered evidence that the accused searched forthe IIRon14Februaiy
2010. ^^^PE 85 (Intelink logs);Testimony ofMr.MarkJohnson. The prosecution also offered
evidence that the accused movedacopy ofthe IIR to his personal Macintosh computer onl5
February 2010. ^^^PE 127 (VoIumes.txt which showed the IIR was on the accused's personal
Macintosh computer).
The above evidence leads toareasonable inference that the accused's accessing the
individual IIR and moving it to his personal computer demonsfiates that the accused read the
10

35813

documetrt. Again, by reading the IIR, the accused was put on notice that by giving information
to Wikileaks.oig,asite that was quickly gainingareputation for encouraging leaks of classified
government iirfoimationandawebsite that seemingly posted everything it received,would be
used by the enemy. This is circumstantial evidence that the accused ki^ewtheenemywould be
Al-^aeda based on the priorities ofthe United States and the accused's knowledge and training
on who our enemy was and our enemy's useofthe Internet. This inference is reasonable
considering the type ofinformation the accused was disclosing to the website, and his training
that made him aware ofthe type ofinfbmiationat^d the enemy's use ofthe Internet.
c. C3 Document
The prosecution also offered evidence ofthe accused's knowledge tluough the Chaos
Communication Congrcss(C3) report, which reported on the December 2009 C3 conference, an
annual event that attracts hackers, security researchers, computer hobbyists and malicious
computer users. The C3 report states that "the Internet is an essential communication tool for
teiTorists." PE 43 (C3 report). Inregard to Wikileaks.oig, the report explains that it is "a
publicly accessible Internet Website where individuals can contact with leaked information and
have it published to the public anonymously without feaiofbcing held legally liable."7^^. The
report further states,"^tjhe information that can be disclosed includes, but is not limited to,
classified information, trade secrets, corporate information, personally identifiable infomnation,
and even operational data." 7^. The report also discusses the threat fiom the insider leaking
information to Wikileaks.org, as Mr. JulianAssange was encouraging the leaking ofclassified
and proprietary information at the conference. Testimony ofMr. FIosbuigh;.^^^^^.^^^PE 43 (C3
report).
The prosecution offered evidence that the accused searched for the report on 14Febiuary
2010,just one day afierietttining fiom R^Rleave. ^^^TestimonyofSA Shaver; PE 85
(Intelh^logs). The prosecution also offered evidence that the accused movedacopy ofthe C3
report to his personal Macintosh computer on 15Febiuaiy 2010. Testimony ofMi. Mark
Johnson; PE 127 (VoIumes.txt which showed the C3 document was on the accused's personal
Macmtosh computer).
The above evidence leads toareasonable inference that the accused's accessingthe
individual report and moving it to his personal computer demonstrates that the accused read the
document. Again, by reading the report, the accused was put on notice that by giving
infbi^nation to Wikileaks.org,asite that was quickly gainingareputation for encouraging leaks
of classified govermnentinfom:iationandawebsitethatseeminglypostedeveiythingitreceived,
would be used by the enemy. This is circumstantial evidence that the accused knewthe enemy
would be Al-t^aeda based on the priorities ofthe United States and the accused's knowledge and
traiiring on who our enemy was and our enemy's use ofthe Internet.
3. Statements hv accused
The prosecution introduced evidence of the accused's own statements that documented
his knowledge that by giving information to Wikileaks.org, he was giving it to the enemy.

11

35814

a. Chats withMi.Adrian Lamo
The prosecution offered evidence that in his chats with Adrian Lamo, the accused called
the disclosed Department ofState cables "world-wide anaichyin CSV format." PE30
(Wiied.com chat logs of the accused and Mr.Lamo). The accused also asserted that the DoS
cables will affect "everybody on earth." 7^. The accusedfiirthernoted that "Hilary Clinton, and
several thousand diplomats around the world are going to haveaheart attack when they wake up
onemoining,andfindsanentirerepositoryofclassifiedfoieignpolicyisavailable,insearchable
format to the public...^L". 7^. It isareasonable inference that if the accused knewthat
everyone in the world would have access to the information onWikileaks.oig, thatthe enemy,
namely Al-^aeda would have access. This inforniationfiirtherreveals that the accused knew the
value of the US goveriu^ent information contained in the Department ofState cables,wluch
fiirther requires the conclusion that by disclosing that information to Wikileaks, that the acctised
knew he was giving the information to the enemy,as he knew tlie infi:^mration would be valuable
to the enemy.
Additionally,as pointed out in the defense brief, the accused ackirowledged that he
"could'vesold^theinfbrmation^torussia or china, and made bank" but he did not "because it's
public data" and "because another state would just take advantage of the information...try to
get some edge." 7^. The defense argues that this statement shows the accused's "focus was on
getting certain inforniation to the American public in order to hopeftilly spark change and
reform." Defei^eRCM917MotionfbrArticlel04at3. However, there is no evidence
supports the defense inteipietation ofthe chat, and should be left for argument. Theaccused
never once mentions the American public or the United States being any sort of motivation for
his crimes in any ofhis chats or emails. The statement cited by the defense instead requires the
opposite conclusion, as it shows thatthe accused did not want to limit access to the information
to one group, but wanted everyone to see the information.
b. Chats with Mr. Julian Assange
The prosecution also offered evidence that the accused(dawgnetwoik) was chatting with
Mr.Julian Assange (pressassociation). Testimony ofMr.Johnson;PE 120 (Buddy Listfiom the
Accused's personal computer listing pressassociation's contact information); PE 123 (Chats
recoveredfi:^rthe accused's personal computer between pressassociation and dawgnet^voik). In
those chats, onlOMaich 2010, the accused called Wikileaks.org the first "Intelligence Agency"
for the general public. ^^^PE123(Chats recoveredfi^rthe accused's personal Mac between
pressassociation and dawgnet^^oik). Tlris demonstrates that the accused does not think of
Wikilcaks.org asancws organization. The chats with Mr. Assange also showthat the accused
knewthe inforniation that he transmitted to Wikileaks.oig would bepublished on the Internet.
^^^PE 123 (Chats recovered forthe accused's personal computer between pressassociation and
dawgnet^^oik). On6March 2010,theaccused asked Mr.Assange ifhe was "gonna give release
ashot?" Mr. Assange responded,"yes." 7^. The accused also asks Mr. Assange,"is it like the
entire world is uploading to you?" Mr. Assangeiesponds with examples ofinfbrmationreleases
from Hungiy,Haiti, and Gemiany,indicating the international interest in his website. ^^^PE
123 (Chats recovered for the accused's personal Mac between pressassociation and
dawgnetwork).
12

35815

In summary,it isareasonable inference that based on the above evidence that the
accused knew the enemyused the Internet, the accused knewwho the enemy was, and the
accused knewthe Wikileaks.orgwebsite was on the Internet and commonly contained classified
official US government infoi^nation and was about to containalot more classified government
infoi^nation that would be ofvalue to the enemy courtesy ofthe accused.
Althoughnot appropriate fbraRCM917motion, the defense argues in their motion that
the accused did not have actual knowledge that by givingthe classified US government
information to the eiieniythat the accused was giving the inforniation toWikileaks.org, the
evidence supports the opposite conclusion through circumstantial evidence. Based on the
evidence presented by the prosecution, it isareasonable inference that the accused was tiained
by the military on the enemy (particularly Al-(^aeda and UsamaBinLaden)and its use ofthe
Internet, the accused was tiained by the military on the types ofinlbrmation the enemy w^ould be
seeking on the Internet, the accused was informed ofhow Wikileaks.oig conducted business by
his own searches during the coimnission ofhis misconduct, and the accused acknowledged in his
discussions during the commission ofhis misconduct that he knew exactly what he was doing in
disclosing the charged information. Ultimately,aieasonablemference can be drawn based on
the circumstantial evidence that the accused knew that by giving information toWikileaks.oig,
he was giving inforniation to the enemy,specificallyAl-^aeda.
CONCLUSION
Since the prosecution has presented evidence on every element ofthe Specification of
ChargeI(AriicleI04), the defense request to enterafinding ofnot guilty as to the Specification
of Chargelshould be denied. This is particularlytrue given the lower burden on the prosecution
to withstand anRCM917motion and the requirement thatthe Court must viewthe evidence "in
the lightmost favorable to the prosecution." RCM9I7(c).

ANGELM. OVERGAARD
CPT,JA
Assistant Trial Counsel
Icertifythatlserved or caused to be sei^edatiue copy ofthe above on the Defuse Counsel,
via electronic mail, onllJuly 2013.

ANGELM.^O^ERGAARD
CPT,JA
Assistant Trial Counsel

13

35816

UNITEDSTATESOF 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 FOR DIRECTED
VERDICT: 18 U.S.C. 1030 OFFENSE

)
)
)

)

11 July 2013

RELIEF SOUGHT
COMES NOW the United States of America, by and through undersigned counsel, and
respectftilly requests this Court deny the Defense Motion for Directed Verdict: 18 U.S.C. § 1030
Offense.
STANDARD
"A motion for a finding of not guilty shall be granted only in the absence of some
evidence which, together with all reasonable inferences and applicable presumptions, could
reasonably tend to establish every essential element of an offense charged." Rule for CourtsMartial (hereinafter "RCM") 917(d). "The evidence shall be viewed in the light most favorable
to the prosecution, without an evaluation of the credibility of witnesses." Id.
WITNESSES/EVIDENCE
The United States requests the Court consider all previous submissions by the pailies
relating to the offenses alleging misconduct in violation of 18 U.S.C. § 1030(a)(1) (Appellate
Exhibits 90,91, 170, and 188), the Court's two previous rulings on this issue (AEs 139 and 218),
and the testimony and evidence cited herein.

LEGAL AUTHORITY AND ARGUMENT
"The militaryjudge, on motion by the accused or sua sponte, shall enter afindingof not
guilty of one or more offenses charged after the evidence on either side is closed and before
findings on the general issue of guilt are announced if the evidence is insufficient to sustain a
conviction of the offense affected." RCM 917(a). The motion by the accused shall state with
specificity where the evidence is insufficient to enable the trial counsel to respond to the motion,
and the Court shall give each party an opportunity to be heard on the matter. See RCM 917(b);
RCM 917(c); RCM 917(c), discussion (stating that the militaryjudge ordinarily should permit
the trial counsel to reopen the case as to the insufficiency specified in the motion).
A motion for afindingof not guilty "shall be granted only in the absence of some
evidence which, together with all reasonable inferences and applicable presumptions, could
reasonably tend to establish every essential element of an offense charged." RCM 917(d). The
Court shall view the evidence "in the light most favorable to the prosecution, without an
evaluation of the credibility of witnesses." Id; United States v. Perez, 40 M.J. 373 (C.M.A.
1
I'AUES

35817

1994)(upholding the military judge'sdecision not to enterafinding of not guilty because the
testimony ofthree witnesses, construed in the light most favorable to the prosecution, could
reasonably tend to establish the overt act). The standard of"some evidence" required to survive
amotion fbrafinding of not guilty isalow one. ^^^^^^^^^^^^^^^^.^^..^.^^^^^^^^^^^^^^^^^^,2013
WL 561356 (N-M.Ct.Crim. App.2013)(concuiring with the military judge who "noted
repeatedly while healing argument on theRCM917motion^that^ the standard for suiv^iving such
amotion is vei^ low'');
59 M.L 893,898(A.Ct. dim. App. 2004)
(encouraging trial judges to view the standard used to decide whether to grantamotionfbra
finding of guilty asamirror image of the standard used to decide whether to give an instruction
onanaffirmativedefense);^^^^^^^^^^^^^.^i^.^^^^^^^^^^^,1994WL711894(A.F.Ct.Ciin^^
1994)(noting that "^t^he militaryjudge was obviously correct in denyingthe motion fora
finding of not guilty under the low,^some evidence'standard set out in R.C.M.917(d)")
(quotingRCM917(d)). Direct or circumstantial evidence satisfies the "someevidence"
standard. ^^^^^^^^^^^^^^^^.^^^7^^^^^^^^, 59 M.L 195 (C.A.A.F.2003);^^^^^^^^
645F.2d453,458 (5thCiil981)
The defense motion foradiiected verdict withiespectto Specification I3ofChaigeII
should bedenied. Forthe third time in this court-martial,the defense argues that the United
States has failed to allege the accused "exceeded authorized access" within the meaning of18
U.S.C§ 1030(a)(l)becausetheaccused"wasauthoiizedtoaccesseachandeveiypieceof
infbimationhe accessed."DefMot.at 2; .^^^AE170at4("PFC Manning was authorized to
access each and every piece ofinfbimationhe allegedly accessed"); AE 90 at27 ("PFC Manning
had access to the relevant SIPRNETcomputeis and was authorized to access every piece of
information that he allegedly accessed on the SIPRNET"). The defense argument over three
separatefilingsis virtually verbatim—the only change is that the defense has dropped the word
"allegedly."This Court has ruled thatrestiictions on access "can include manner of access." AE
218at2. In filing this motion foradiiected verdict, thedefenseappears to have ignored the
Court'sstatement ofthe law. ^^^Def Mot. at3("Thatis,^exceeds authorized access'is not
concerned with the ^^^^^^^^^^^ in which information to which one has access is downloaded; it is
rather concerned with whetherthe accused was ^^^^^^^^^7^^^^^^^^^^^^^^^^^^^^^^^
was obtained oralteied."). The Govermnent'stheoiyfbrSpecification13of Charge II isavalid
application ofthe statute. ^^^AE2I8. The Goveimnentpiesented evidence in accordance with
thattheory during its case-in-chief, including evidence relating to each essential element. No
fiirther inquiry is necessai^.
L

THEGOVERNMENT'SPROFFEREDTHEORYWASCONSIDEREDBYTHE
COURT.

Prior to trial, the Government proffered that the accused "exceeded authorized access"
within the meaning ofl8U.S.C.§I030(a)(l)when he obtained the infbimationatissue using an
unauthorized program (Wget). ^^^AE188at2. In thatsame filing, the Goveimnent stated that
"Wget can be used asa^web crawler'by extracting resources linked from web pages and
downloading them in sequence...Wget can be used to rapidly minedatafrom websites." 7^. The
Government cited evidence presented at the Article32investigation,which showed that "the
accused addedWget to his ^SIPRNETjcomputerand used the program to access and harvest
morethan 250,000 Department ofStatediplomaticcables fiom the Net-Centric Diplomacy

35818

(NCD)website."7^. The Goveimnent proffered that evidence presented atthe court-martial
would establish thatWget was not authorized sofiware for Army computers.
Theieafier, this Court considered the piofferoftheGoveinment,^^^^^^^^.^^^^^^^^
^^^^^^^^^7^^^^^^^^^^^^^^^^^^^^^,andmled:
Restrictions on access to classified information are not limited to
code based or technicaliestrictions on access. Restrictions on
access to classified information can arise fiomavaiiety of sources,
to include regulations, user agreements, and command policies.
Restrictions on access can include maimer of access. User
agreements can also contain restrictions on access as wefi as
restrictions on use. Tlie t^voaie not mutually exclusive.
AE218at2. This Court made it clear that criminal liability for exceeding authorized access
under 18U.S.C.§I030(a)(l)was "not limited to code breaking restrictions on access." 7^^.
IL THEGOVERNMENTPRESENTEDEVIDENCEINACCORDANCEWITHITS
PROFERREDTHEORY.
The United States is puzzled. It would be one thing ifthe Government profferedatheory
to the Court that was not borne out at trial by the facts—facts that must be viewed in the light
most favorable to the prosecution. Itis another thing entirely when the defense articulates, on
the first page ofits motion, the Court'sruling on the issueof"exceeds authorized access" with
an incomplete reference to the record and withoutfiirtherelaboration. ^^^Def.Mot.at1("The
Court mled, in response to the first motion, that the Court would adopt the narrow view of
^^^^^^^^^^^^.^i^.^^^.^^^^,676F.3d 854 (9th Cir. 2012) such thatthe Government would not beable
to bootstrap use restrictions (improperuseofinfbimation)into access restrictions forthe
puiposesof18USC§ 1030.")
As stated above, the proffered theory for "exceeds authorized access" was that the
accused obtained the information at issue using an unauthorized program. For purposes ofthis
motion, it is importantto note four separate conclusions oflaw by this Court. Fiist,"restiictions
on access can include manner ofaccess." AE218. Second,"user agreements can also contain
restrictions on access as well as restrictions on use."7^. Third, access and use "are not mutually
exclusive."^. Finally,"exceeds authorized access" is not limited to code breaking restrictions
onaccess."7^. The defense concedes that the United States introduced evidence that the
accused used the program Wget to download more than 250,000 Department ofState cables.
Def Mot. at2("TheGovernment has introduced evidence that PFC Maiming used the program
Wget to download the diplomatic cables."). Thus, the otily inquiry lefi is whether the
prosecution presented evidence thatWget was an unauthorized program. Fortunately for the
Court'sdeteimination ofthis issue, the United States has presented overwhelming evidence that
Wget^whether characterized as sofiware,fieeware,or an executable^was not authorized on
Aimycomputersgeneially,andtheDefenseCommonGioundSystemAimy(DCGSA)
computeisspecifically. ^^^TestimonyofSADavidShaver(stating that Wget is notastandard

35819

program on Army computers and was not part ofthe Army Gold Master, and that there is no
difference betvveen sofiware and executables);TestimonyofMi. Jason Milliman (stating that
onlytheDCGS-AField Sofiware Engineer (FSE) was authorized to put an executablefile on
DCGS-A machines);TestimonyofCPT Thomas Cheiepko(stating that the Acceptable Use
Policy and AR25-2piohibited introducing sofiware,fieeware,or executables, and that Wget
was not an authorized executablefile);TestimonyofMarkI^itz(stating thatWget is not on the
DCGSAbaseline system, and that Wget did not go through the process and was never
authorized).
IIL THEGOVERNMENTPRESENTEDEVIDENCEWITHRESPECTTOEACH
ESSENTIALELEMENT OFTHEOFFENSE
This Court must determine whether the evidence presented could reasonably tend to
sustainaconviction for the relevant offense. i^^^RCM917(a). Amotion fbrafinding of not
guilty "shah be granted only in the absenceofsome evidence which, together with all reasonable
inferences and applicable presumptions, could reasonably tend to establish every essential
element ofan offense charged." RCM 917(d). In order to find the accused guilty of
Specificationl3ofCharge II, the Court mustfind:
(1) That at or near Contingency Operating StationHammei, Iraq, between on orabout 28 March
2010and on or about 27 May 2010, the accused knowingly accessedacomputer exceeding
authorized access onaSecret Internet Protocol Router Network;
(2) the accused obtained information that has been determined by the United States Government
by Executive Order or statute to require protection against unauthorized disclosure for reasons of
national defense or foreign relations, to wit: more than 75 classified United States Department of
State cables;
(3) the accused had reason to believe the information obtained could be used to the iiijury ofthe
United States or to the advantage ofany foreign nation;
(4) the accused communicated, delivered, transmitted, or caused to be communicated, delivered
or transmitted the information toaperson not entitled to receive it;
(5) the accused acted willfiilly; and
(6) under the circumstances, the conduct ofthe accused was to the pr^udiceof good order and
discipline in the aimed forces orwas ofanature to bring discredit upon the ai^ed forces.
^^^AE410.
The United States presented evidence with respect to each essential element ofthe
offense during its caseinchief Although the defense did not raise the issue ofwhether the
United States presented evidence with respect to element (3)above, the testimony ofseveial
witnesses, as well as the charged diplomatic cables themselves, establish that the accused had

35820

"reason to believe" the cables he obtained could be used to the iiijury ofthe United States or to
the advantageof any foreign nation.
Testimony ofTroy Moul (AIT instruction); PEs
I69I78(diplomatic cables were marked with classification). The only other contested element
is whether the accused "knowingly" exceeded authorized access on the SIPRNET. On this point,
the prosecution presented overwhelming evidence that the misconduct was "knowing." SA
Shavertestified thatWget was underthe accused'suser profile and not inthe piogramfiles.
Thus, the program was only available to the accused on the computer he was using.
Testimony ofSA Shaver. SA Shaver also testified that to run Wget, the accused had to createa
program or script in orderto download the cables fiom NCD and the detainee assessments fiom
the Intellipedia site. 7^. Mr.Milliman, the DCGS-AFSEand administrator, was never
approached to putWgetonacomputer,nor had he heard ofWget before his involvement in this
case. ^^^Testimony ofMr. Milliman. There is also no evidencethe accused asked any ofhis
superiors whether he could downloadWget to his SIPRNETcomputer; in fact, none of the unit
witnessestestified that they evenknew what Wget was until recently. ^^^TestimonyofUnit
Witnesses. Further, the evidence showed that the accused specifically enabled private browsing
in MozillaFirefbx to prevent the recording of search and activity history on the SIPRNET.
Testimony ofSA Shaver. As such, there is overwhelming evidence that when the accused
downloa^edWget and put it on his computer(on at least two separate occasions), he did so ina
mannerthat hid the program fiom other users, his supervisors, and the administrator. The logical
inference is that the accused knew the program was not authorized to be used to rapidly harvest
more than 250,000 cables fiom NCD, and more than 700 detainee assessments fiom an
Intellipedia site.

IV.

THEEVIDENCEPRESENTED ALSO ESTABLISHED THATWGETOR
SOMETHINGLII^EITWASNOTEMBEDDEDWITHINNETCENTRIC
DIPLOMACY

The evidence presented established that the "manner" ofaccessing or obtaining the cables
in this case was the useofaWget, an unauthorized program. Wget was not part ofthe
Department ofState Net-Centric Diplomacy (NCD)website, and there was no mechanism to
allowusersofNCD to download orprintmultiple cables at one time.^^^Testimony of Charles
Wisecai^er;TestimonyofSA Shaver (Wget was not embedded as part of the NCD seiner). Mr.
Wisecai^er also testified that diplomatic cables downloaded fiom NCD came withabaimer
embedded. ^^^TestimonyofMr.Wisecaiver. Although Mr.Wisecarver could not remember
the exact wording ofthe banner, the banner reads as follows:
USE OF THIS DoS COMPUTER SYSTEM,AUTHORI^ED OR
UNAUTHORIB^ED, CONSTITUTES EXPRESS CONSENT TO
MONITORING OF THIS SYSTEM. UNLESS SPECIFICALLY
LABELED ASRELEASABLE TO FOREIGN NATIONALS,
CONTENT IN THIS DoS INFORMATION SYSTEM IS NOT
RELEASABLE
TO
FOREIGN
NATIONALS.
UNAUTHORISED USE MAYSUBJECT YOU TO CRIMINAL
PROSECUTION
EVIDENCE OF UNAUTHORISED USE
COLLECTED DURING MONITORING MAYBE USED FOR

35821

ADMINISTRATIVE, CRIMINAL, OR OTHER ADVERSE
ACTION USE OFTHIS SYSTEM CONSTITUTES CONSENT
TO MONITORING FOR THESEPURPOSES.
Prosecution Exhibitl73c(exampleofbanner embedded in cables downloaded from
NCD). The defense characterizes the database banner as focused on the "^^.^^ ofthe
information." DefMot.atlO. Fortunately,the Court does not have to rely On the defense to be
candid. Tl^e "use" in the banner above clearly refers to use of the system itself As the Court
stated, access and use "are not mutually exclusive."AE218. The baimer can fairly be read as
"unauthorized use^ofthiscomputersystem^maysubjectyou to criminal prosecution'',which is
separateand apart fiom the prohibition on releasing "content" orinfbrmation in the system to
foreignnationals. Italso appears the defense is attempting to confiise the Court by intimating
that because Microsoft Excel was part ofthe baseline package for the DCGSAmachines, there
was some kind ofauthoi ized mechanism the accused could have used to download cables rapidly
fiom NCD. ^^^DefMot.at3. MicrosoftExcelisaprogram used by analysts to create
spreadsheets and tables. SeeTestimonyofCW2I^yleBalonek(all Soldiers within theS2
section used Microsoft Excel spreadsheets for simple tasks). The idea thataspreadsheet
program like Excel doubles asaprogiam that could download webpages rapidly is preposterous
and one example ofthe way the defense has mischaiacterized evidence. The Court should note,
however, that the Combined Information Data Network Exchange(ClDNE) database alloweda
userto export significant activity reports in monthlyincrementstoacomma separated value file
or Excelfile—anexample ofadatabase containingadesign feature which allowed downloading
in batches. ^^^Testimony of Chad Madaras; Stipulation ofExpectedTestimony for Patrick
Hoeffel (CIDNE allowsauser to export SIGACTsintoa".csv" format)
V.

ADECADEINJAIL1STHEMAX1MUMPENALTYF0RAVI0LATI0N0FI8
U S C § 1030(a)(1).

The defense asserts atseveral points thata"decade in jail cannot turn on what programs
the Army happens to put on its ^authorized sofiware'list." Def.Mot.at3;.^^^^^.^^Def.Mot.at
15 ("It would beasad day indeed ifadecade in jail could hingeexclusively on what program an
accused used to download information he was otherwise entitled to access and othei^vise entitled
to download."). Aside fiom whether this is an appropriate argument foramotionunderRCM
917,the legislative branch determined that the maximum penaltyforaviolationof18U.S.C.§
1030(a)(l)was ten years in prison. In its focus on whether the use of"unauthorized software"
should be relevant to the "exceeding authorized access" inquiry,the defense forgets that§
1030(a)(l)as^^whole criminalizes serious misconduct. ^^^18U.S.C.§ 1030(a)(l)(punishing
individuals who obtain and communicate classified information to unauthorized persons).
Additionally,the evidence presented during the prosecution'scasein-chief established that Wget
isadangerous program fortheSIPRNET.
Testimony ofCW4Aimond Rouillard
(stating that he usedWget in his OPFOR capacity for attacking the Armynetwoik, and he was
specifically authorized to installWget; Wget is only for individuals who are penetration testers
and OPFOR);TestimonyofSA Shaver (Wget downloaded information faster than humanly
possible);TestimonyofCPT Cherepko (Wget "scrapes" websites and retrieves any data that is
set in the program to retrieve);TestimonyofMr.Weaver (Wget allows you to do entire content

35822

downloading ofawebsite). Accoidingly,policies prohibiting Wget on SIPRNETcomputeis
seem more than appropriate.
CONCLUSION
The United States respectfullyiequests this CouitDENY the Defense Motion for
DirectedVeidict:18U.S.C.1030 Offense. Forthe reasons stated above, the United States has
presented evidence with respect to each essential element ofSpecificationl3ofChaigeIL

Ip^K*-^
/KDDEAN MORROW
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 11 July 2013.

-^^/Vv.
5EAN MORROW
^CPT, JA
Assistant Trial Counsel

35823

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

Potential Rebuttal Case
15 July 2013

RELIEF SOUGHT
The prosecution in the above case respectfully requests the Court permit the United
States to elicit the below-listed information to rebut the evidence raised in the defense case in
chief 5ee RCM 913(c).
STANDARD
"It is well settled that the function of rebuttal evidence is to explain, repel, counteract or
disprove the evidence introduced by the opposing party." United States v. Banks, 36 M.J. 150,
166 (C.M.A. 1992) (quoting UnitedStates v. Shaw, 26 C.M.R. 47,51 (C.M.A. 1958) (Ferguson,
J., dissenting). "The scope of rebuttal is defined by evidence introduced by the other party." Id.
(citations omitted).
FACTS
The prosecution rested on 2 July 2013. The defense rested on 10 July 2013.
WITNESSES/EVIDENCE
SPC Kyra Marshall
Mr. Allen (Jason) Milliman
SA David Shaver
Ms. Jihrleah Showman
Additional Forensic InvestigatoiAVitness
POTENTIAL REBUTTAL
The United States will re-call Ms. Showman to rebut the motive evidence the defense
elicited from Ms. Lauren McNamara (formerly known as Mr. Zachary Antolak) in the February
2009 to August 2009 (pre-deployment) timeframe.
The United States will call SPC Marshall to rebut the motive evidence the defense
elicited from SGT Sadtler in the March 2010 (deployment) timeframe.

APPF\;,.4Tpnv.-7^7'r
- „ ..
- •* • •• -' - : 1 fcOL

35824

The United States will re-call SA Shaver to discussaspecificSIGACT,dated March
2010to expound upon and counteract the testimony ofSGTSadtlerthat he thought the incident
that the accused approached him with documentation about, involving Iraqi Nationals being
arrested, may have taken place in December 2009.
The United States will re call SA Shaver to discuss emails the accused sent to members
ofthe media, as well as Wikileaks tweets that were found on the accused's personal Macintosh
computer,to rebut the evidence offered by the defense that Wikileaks operated asajournalistic
organization, and was consideredalegitimate journalistic organization elicited through Professor
YochaiBenkler.
The United States will re-callSAShaver to discuss howWget was run fiom the accused's
profile on his SIPRNETcomputer to counteract the testimony ofCW21^hresman that executable
files could be mnofi^ofadisk.
The United States will re call an additional forensic investigatorAvitness to discuss how
the Wikileaks.org website appeared in 2009 and 2010to expound upon and counteract the
evidence offered by the defense that Wikileaks opetatedasajoumalisticorganization elicited
thtough ProfessorYochaiBenkler.
The United States wih re-call Mr.Milliman to explain what was and was not authorized
on the DCGSAmachines. Specifically,he will testify that he would not have told CW2
Ehresman that he could mn otherwise unauthotized programs and executable files fiomaCD.
The United States wih request the Couittake judicialnotice ofthe entire book, G^^^
by DavidFinkel to explain whatthe accused would have read in the book beyond the
selectportions ofwhich the Courttookjudicialnoticeand admitted upon defense request.
Depending onthe defense disclosutes pursuant to RCM 914, the United States may tecall additional defense witnesses or others in rebuttal.
CONCLUSION
Since the abovelisted evidence goes directly to explain or contradict evidence raiscdby
thedefense in their casein chiefs the prosecution should be petmitted toraisethe evidence in
rebuttal.

^

ANGELMOVERGAARD
CPT,JA
AssistantTrial Counsel

35825

Icertifythatlserved or caused to be seivedatlue copy ofthe above on the Defense Counsel,
via electronic mail,on 15July 2013.

ANGEI^^. OVERGAARD
C1^T,JA
AssistantTrial Counsel

35826

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE REPLY TO
v. GOVERNMENT RESPONSE

TO MOTION FOR DIRECTED
MANNING, Bradley E., PFC VERDICT ON THE 18 U.S.C. ?64l
U.S. Army, OFFENSES
Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall, DATED: 12 July 2013
Fort Myer, VA 22211

RELIEF SOUGHT

1. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 9l7(a), requests this Court to enter a ?nding of not guilty for
Speci?cations 4, 6, 8, and 12 of Charge ll.

STANDARD

2. A motion for a ?nding of not guilty should be granted when, viewing the evidence in the light
most favorable to the prosecution, there is an ?absence of some evidence which, together with all
reasonable inferences and applicable presumptions, could reasonably tend to establish every
essential element of an offense charged.? R.C.M. 917(d).

ARGUMENT

A. The Government?s Apparent Contention that ?Database Records Copies of
Records Information? Must be Rejected

3. After reading the Govemment?s Response, the Defense still has no idea what the Government
is saying it has charged PFC Manning with ?stealing? or ?converting? within the meaning of 18
U.S.C. ?64l. To the best of the Defense?s ability to understand the Government?s position, it
appears to be saying it has charged PFC Manning with stealing the databases and the records
contained in the database (and/or their copies) and the information contained in the records.? See

The Defense cannot ?gure out what this means for the Govemment?s position on valuation. It appears that since
the Government is arguing that databases contain records which contain infonnation, it is allowed to aggregate the
value of the database with a value of the records with a value of the infonnation contained in the records. See
Government Motion, p. 20 (??Similarly, evidence of the cost of production for the databases and records contained
therein cannot be separated from the information because the information requires protection?) If this is the
Govemment?s position, there is no case dealing with ?64l that has pennitted a theory of this nature to proceed.
Cases have allowed the prosecution to proceed separately with either charging/proving the? of ?records? (or copies
of records, as the case may be) or the? of ?infonnation.? No court has ever allowed a prosecution to proceed based

(503



Government Motion (?the accused stole and converted the databases and records listed in the
641 speci?cations? ?the evidence proves the contents of the databases and the records
were stolen or converted? ?The United States charged that the accused compromised
databases, to include the records contained in the databases? 12); ?the records include the
information contained therein? 13); ?The accused both stole and converted the information he
compromised? 14); ?The accused?s admission provides a reasonable inference of his intent to
deprive the United States Government permanently of the records and information contained
therein? 15); ?the conveyance harmed the United State?s [sic.] interest in exclusive
possession of the information in the records, thereby further adding to the conversion caused by
the accused.? 16); ?The accused stole and converted records maintained on United States
Government computer systems? 17); ?any distinction between copies of the records is
feckless? 17); ?the accused is charged with stealing or converting databases, to include the
records contained therein, and not documents?

4. In short, it seems like the Government wants the word ?database? to encapsulate everything
under the sun?records, copies of records, information in records, and the exclusive possession
of information contained in records. The problem for the Government is that it simply charged
PFC Manning with stealing ?databases? ?not records, not copies, not infomiation, or any
variation thereof. Neither records, nor copies of records, nor information, is fairly embraced
within the word ?database.? The Government?s last-ditch and schizophrenic attempt to argue
that the word ?database? encapsulates all these other things (things which have independent
meaning and value) must be rejected.

5. The Govemment?s position seems to be that the relevant databases (CIDNE, NCD,
SOUTHCOM) are coextensive, or synonymous, with the records that are housed in the database
and, by further extension, the information that is contained within those records within the
database. See Government Motion, p.13 (?By the plain meanings of the 641 speci?cations, the
records include the information contained therein. A database is ?a compilation of information
arranged in a systematic way and offering a means of ?nding speci?c elements it contains, often
today by electronic means.? Black?s Law Dictionary (9th ed. 2009). Similarly, a record is
?information that is inscribed on a tangible medium or that, having been stored in an electronic or
other medium, is retrievable in perceivable form.? Black?s Law Dictionary (9th ed. 2009). The
Charge Sheet informed the accused of the stolen res because the Charge Sheet described stolen
records, which, by de?nition, includes the infomiation in those The fact that
?database? is a different word than ?record? indicates that the two are different things. The fact
that ?information? is also a different word than ?database? and ?record? further denotes that
information is a different thing than a record or a database.

6. A database is a receptacle or container for information. If not populated with any records or
information at all, it still remains a database?albeit an empty database. In this case, the
databases contained things other than government records. They contained electronic means of
searching, various ?elds, program commands and the like. If, for instance, there were no
SIGACTs populating the CIDNE database, it would still be the CIDNE database. Similarly, if
there were no cables populating the NCD database, it would still be the NCD database. Thus, a

on an amalgam of records and infonnation. And, lest it be forgotten, the Government has not charged either
?records? or ?infonnation.?

35828

database is far more than the records that it may contain at a given point in time. This is such a
common sense proposition that the Govemment?s own motion, while purporting to elide
?database? and ?records,? in fact sharply distinguishes between them. See Government Motion
(?The Court took judicial notice that WikiLeaks posted records from the database,
CIDNE-Afghanistan database, and USSOUTHCOM database. SA Bettencourt con?rmed that
WikiLeaks posted the purported Department of State records from the NCD database.?
?This SD card contained a picture of the accused, in addition to more than 380,000 records ?'0m
the database? The SD card with which the accused stored the records from
the database SA Shaver testi?ed that the accused stole, purloined, or
knowingly converted more than 90,000 records ?om the CIDNE-Afghanistan database?
. .used Wget to retrieve more than 700 records ?om the United States Southern Command
database accessible through the Joint Task Force?Guantanamo (JTF-GTMO) Detainee
Assessment Branch website on Intellipedia. Mr. Jeffrey Motes con?rmed that the records in
the United States Southern Command database were stored by ?DocumentID? and that the above
database consisted of over 700 records? ?The United States charged that the accused
compromised databases, to include the records contained in the databases? The fact that
the Government repeatedly acknowledges that records are ?from? certain databases, or that
records are ?contained in? certain databases establishes that the two (database and records) are
not the same thing. Records are ?contained in? databases; records ?come from? databases.
Records themselves, even when aggregated, are not databases.2

7. Moreover, the Govemment?s argument that ?databases records? falls ?at when one
speci?cally considers the charged CIDNE databases. The Government alleges, for instance, that
PFC Manning stole the and CIDNE-Afghanistan databases because he
compromised thousands of records in the databases. What the Government fails to mention is
that and CIDNE-Afghanistan databases had much more content than simply the
SIGACTS. They contained, according to various witnesses, other records such as Human
Intelligence Reports, Counter Improvised Explosive Device Reports, Operations
Reports, etc. Thus, perhaps only 10% (for sake of argument) of the records contained within the
database were copied and compromised. This fact alone demonstrates that there is a clear
distinction between ?database? and ?records? and that compromising certain records within the
databases does not amount to stealing or converting the database itself.

B. The Government Must Now Own What it Pled in the Charge Sheet

8. As indicated in the Defense?s Motion for a Directed Verdict, and the Government does not
dispute, the Government has charged that PFC Manning stole databases. The Government has
never charged that PFC Manning stole copies of records3 or that he stole information. When the
Defense asked for elaboration on what PFC Manning is alleged to have stolen in the Defense?s

2 Since the Government fails to understand the difference between a database and the contents of a database, perhaps
another example will be of assistance. Westlaw is a legal database containing, among other things, cases,
legislation, and commentary. If a person copied every single case, statute, journal article, etc. from Westlaw onto
CD, they have not have stolen the database. They may have stolen, perhaps, a copy of the various items in the
database a copy of the contents of the database). But they have not stolen the database itseIf?the template, the
search queries, the programming code, or the items contained in the database.

3 The Government bizarrely does not believe there is a distinction between records and copies of records when it is
clear from all ?64l case law that there is a marked difference between the two.

35829

Motion for a Bill of Particulars, the Government maintained that is ?is clear what property is at
issue,? namely ?speci?c, identi?ed databases.? In full, the Govemment?s position was as
follows:

The defense request for particulars in paragraph 10a of the defense motion
attempts to restrict the Govemment?s proof at trial. The defense relies on
Newman for the proposition that a bill of particulars may be used to ?clarify the
speci?c theory upon which the Government intends to rely.? (Def. Mot. at 5.)
That language or proposition does not appear in the opinion, nor is the United
States aware of any authority that suggests such a wide-reaching purpose for a bill
of particulars. The defense also asserts that the speci?cations at issue under this
paragraph make the accused susceptible to unfair surprise at trial. In fact, the
speci?cation is clear??the accused is on notice that the United States alleges he
stole, purloined, or knowingly converted Government property. As a practical
matter, ?steal? and ?purloin? have the same meaning under the law. United States
Attorneys Manual, Criminal Resource Manual at 1639,
Any argument the
accused will be misled or paralyzed by decisions over what evidence to present to
refute whether conduct constituted ?stealing? or ?knowing conversion? is without
merit. Furthermore, the theft-related o?enses alleged in this case are of specific,
identi?ed databases. There is no danger the accused will be subject to
prosecution for the same offense at a later date because each speci?cation is
clear regarding what property is at issue.

Appellate Exhibit XIV (emphasis added). Thus, when the Defense sought to clarify the property
that was allegedly stolen, it was told in no uncertain terms: ?the theft-related offenses alleged in
this case are of speci?c, identi?ed databases.? Id.

9. The Court held that:
the purposes of a bill for particulars are to:

a. inform the accused of the nature of the charge(s) with suf?cient precision to
enable him to prepare for trial;

b. avoid or minimize the danger or surprise at the time of trial; and

c. enable the accused to plead acquittal or conviction in bar of another prosecution
when the speci?cation itself is too vague and inde?nite for such purpose.

Appellate Exhibit XXIX. The Court then concluded that ?[t]he Government responses to the
Defense Request for Bill of Particulars are suf?cient to satisfy the purpose of a Bill of
Particulars.? Id. It is clear from the Bill of Particulars that the Government was alleging that
PFC Marming stole ?speci?c, identi?ed databases? not copies of records, or information. This
was the charge that the court said held ?suf?cient precision? to enable PFC Manning to prepare
for trial.

35830

10. The Government, in fact, has always maintained that it is the databases that were stolen-~?
not the records or the information contained within the records. This is clear when one looks at
the Government?s proposed Instructions4:

Speci?cation 4 of Charge II: Violation of the UCMJ, Article 134

In Specification 4 of Charge II, the accused is charged with stealing or converting
the Combined Information Data Network Exchange Iraq database containing
more than 380,000 records belonging to the United States government, of a value
of more than $1,000, in violation of 18 U.S.C. 641. To ?nd the accused guilty
of this offense, you must be convinced by legal and competent evidence beyond a
reasonable doubt of the following elements:

(1) That at or near Contingency Operating Station Hammer, Iraq, between
on or about 31 December 2009 and on or about 5 January 2010, the accused did
knowingly and willfully steal, purloin, or convert another a
record or thing of value, to wit: the Combined Information Data Network
Exchange Iraq database containing more than 380,000 records;

(2) That the CIDNE-I database belonged to the United States government
or a department or agency thereof;

(3) That the CIDNE-I database 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 bene?t of the property;

(5) That, at the time, 18 U.S.C. 641 was in existence; and
(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).

Adapted from Benchbook, paragraph 2-5-9; 18 U.S.C. 641; Model Crim. Jury
Instr. 8th Cir. 6.18.641 (2011) (Enclosure 3).

Lesser-Included Offense

The offense of stealing or converting the CIDNE-I database, of a value of less
than $1,000, is a lesser-included offense of the offense set forth in Specification 4
of Charge II. When you vote, if you ?nd the accused not guilty of the offense
charged, that is, stealing or converting the CIDNE-I database, of a value of more
than $1,000, then you should consider the lesser-included offense of stealing or

4 This is the Govemment?s proposed instruction for the CIDNE database. The additional speci?cations are identical
except that they name other databases (CIDNE-Afghanistan Database; Net-Centric Diplomacy Database; United
States Southern Command Database).

35831

converting the CIDNE-I database, of a value of less than $1,000, in violation of
18 U.S.C. 641. To ?nd the accused guilty of this lesser offense, you must be
convinced by legal and competent evidence beyond a reasonable doubt of all of
the elements of the greater offense, except for the value element. The offense
charged, and the lesser-included offense of stealing or converting the CIDNE-I
database, of a value of less than $1,000, differ in that the greater offense requires
you to be satis?ed beyond a reasonable doubt that the CIDNE-I database is worth
more than $1,000.

Adapted from Benchbook, paragraph 2-5-10.

See Appellate Exhibit 199 (emphasis added). In this instruction, the Government referred to the
charged ?database? a total of nine times. It is clear from the Government?s proposed
instructions that it sought to allege the theft or conversion of the databases. It is equally clear
that the Government sought to value the databases. See id. (?That the CIDNE-I database was of
a value of more than This is fundamentally different than saying that copies of
?records? had a value of more than $1,000 or that ?information? had a value of more than

1 ,000.

11. Now, at the 11"? hour, after the close of evidence by both parties, the Government seeks to
concoct a charge which requires a string of assumptions: when we charged databases, we really
meant the records in the databases, and when we meant the records in the databases, we really
meant the copies of records in the database, and when we meant the copies of records in the
database, we really meant information in the copies of the records in the databases, and when we
meant the information in the copies of the records in the databases, we really meant the United
State ?s [sic] interest in exclusive possession of the information in the records. See Government
Motion at p. 16. None of this is even remotely encapsulated in the Charge Sheet, the Bill of
Particulars, or in the Government?s Instructions. It is a gargantuan leap to go from ?databases?
to ?the United State?s [sic] interest in exclusive possession of the information in the records.?5

12. The Court, during extensive motions argument, heard the repeated refrain from the
Government that ?words matter? and that the Defense must provide ?speci?city.? The Court
will recall the incident where the defense requested ?documents? from Quantico, but the
Government did not believe that ?emails? were encapsulated within the word ?documents? and
thus did not produce the emails pursuant to the Defense?s discovery request. The Court will also
recall the Defense asking for ?investigative reports? or ?damage assessments? during discovery.
The Government responded that it did not have any investigative reports and that what the
Defense was looking for was ?working papers.? The Court will also recall the Government?s
distinction between a ?draft? and an ?interim? report with respect to the Department of State

5 The Government seems to think that the Defense should have objected to the Govemment?s introduction of certain
evidence regarding valuation of information and that the failure to do so means that the Defense believed the
evidence was relevant. The Government is mistaken. In the Marshall case, it is doubt?il that the defense counsel
stood up and said, ?Hey Government, why are you putting forward all this evidence on CPT Kreitman when it?s
clear that my client escaped from SSG Fleming? You should put forward evidence on SSG Fleming.? United States
v. Marshall, No. 08-0779 (C.A.A.F. 2009). So too is the case here. It would be ineffective assistance of counsel for
the Defense to point out that the Govemment?s evidence was irrelevantthe Defense to point out
any inadequacies in the Govemment?s proof.

35832

damage assessment. In each of these instances, the Government vehemently maintained that
?words matter.? Well, words matter the most when we are dealing with charging documents.
The 18 U.S.C. ?64l offenses carry with them a total of 50 years in prison. If ?emails? are not
?documents? and a ?draft? is not an ?interim report?, then neither is a ?database? a ?record? or
?information.? The Government has pled that PFC Marming stole databases and that is what it
must prove (and what the Defense maintains it has not done).

13. The Government took almost one full year to draft the charges in this case. It could have,
and should have, conducted research into the 18 U.S.C. ?641 offenses. If it had, it would have
realized that ?records? and ?information? are not the same thing in terms of the property
allegedly taken (as discussed in more detail below); and they certainly are not the same thing in
terms of valuation. The Government undoubtedly charged ?database? because it was clear to the
Government that databases generally cost millions of dollars to set up and run. Thus, the
Government believed it would easily clear the $1000 valuation hurdle. However, it failed to
consider what is apparently obvious to everyone else except the Government: PFC Manning did
not steal or convert the database itself. The Government itself now appears to concede that PFC
Marming did not steal the database, but rather certain records contained therein. See Government
Motion, p. 12 (?The United States charged that the accused compromised databases, to include
the records contained in the databases. See Charge Sheet. The United States admitted evidence
to provide a reasonable inference the records were stolen and converted?; the Government did
not argue that it proved that the databases themselves were stolen).

14. Since the Government charged PFC Marming with stealing or converting databases, it must
now own what it pled and prove that PFC Marming stole or converted databases (not copies of
records or information). The Court has previously held that the Government must prove what it
pled and this instance is no different. See Appellate Exhibit 515 (?The Government elected to
charge the communication under the ?information clause.? That clause carries with it the ?reason
to believe? scienter requirement. The Government is required to prove beyond a reasonable
doubt that the accused had reason to believe the communicated information could be used to the
injury of the U.S. or to the advantage of any foreign nation. .

C. The Government Fails to Address 18 U.S.C. ?641 Case Law Because Case Law
Makes Clear that ?Records? and ?Information? Are Different Things

15. What is glaringly absent from the Government?s motion is any attempt to grapple with, or
distinguish, any of the case law cited by the Defense dealing speci?cally with 18 U.S.C. ?641.
Instead, the Government focuses extensively on a case dealing the wire and mail fraud. See
Government motion at p. 15, 16, and 19. The reason for this is obvious: the ?641 case law goes
decidedly against the Government and its position in this case.

16. The Government?s legal position on its premise that ?records? includes ?information? is
replicated, in its entirety, below:

3. Information as part of records comports with precedent

Charging records and the information contained therein comports with applicable
precedent in criminal law. The contents and information contained in government

7



35833

records determines the criminality of the theft of the records more than the form
of the records. See United States v. Bottone, 365 F.2d 389 (2d Cir. 1966), cert.
denied, 385 U.S. 974 (1966) (?When the physical form of the stolen goods is
secondary in every respect to the matter recorded in them, the transformation of
the information in the stolen papers into a tangible object never possessed by the
original owners should be deemed immaterial?); United States v. Lambert, 446
F.Supp. 890, 894 (D.C. Conn. 1978). Under 641, the transmission of the
information contained in documents is just as larcenous as theft of the documents
themselves. United States v. Rosner, 352 F.Supp. 915, 922 (D.C.N.Y. 1972)
(noting that the importance of information in documents described in Bottone
applies to 641 charges).

Government Motion at p. 13-14. The Defense does not dispute that ?[c]harging records and the
information contained therein comports with applicable precedent in criminal law.? Id. The
problem is that the Government did not charge ?the information contained therein.? The
Government simply charged the theft of the databases. Similarly, the Defense also does not take
issue that ?[u]nder 641, the transmission of the information contained in documents [can be]
just as larcenous as theft of the documents themselves?? The Government is not saying anything
remarkable here. However, if the Government has not charged the information, it cannot then
seek to convict PFC Manning on the basis that he stole or converted the information?

17. The Government has not addressed any of the Defense?s cases which point out that when the
government is relying on the theft of ?information,? the word ?information? appears in the
Charge Sheet or Indictment. See e. g. United States v. Jeter, 775 F2d 670, *680-1 (6th Cir. 1985)
(?The government charged that Jeter ?did willfully and knowingly embezzle, steal, purloin and
convert others, and without authority did sell, convey and dispose
of records and things of value of the United States, the value of which is in excess of $100.00, to
wit, carbon paper and the information contained therein relating to matters occurring on October
5, 1983, before a grand jury??).

18. The Government has pointed to no case where a court has held that ?information? is
somehow fairly embraced in the word ?record? for the purposes of 18 U.S.C. 641. In fact, the
cases are all to the contrary. In those courts that have accepted that information, as an intangible,
is within the ambit of 18 U.S.C. ?641, they have done so on the basis that information is a ?thing
of that information is a ?record.?8 See 18 U.S.C. ?641 (?Whoever embezzles, steals,
purloins, or knowingly converts another, or without authority, sells,
conveys or disposes of any record, voucher, money, or thing of value of the United States

6 To clarify, the Defense contests that ?64l applies to the theft of information (an intangible); however, the Defense
acknowledges that there is legal authority in the form of case law to suggest that information can be charged as
being in the ambit of the section.

7 The Government is simply mistaken when it says, ?The contents and infonnation contained in government records
determines the criminality of the the? of the records more than the fonn of the records.? See Government Motion at
p. 13-14. The the? of ?information? is no more criminal than the the? of ?records? under 18 U.S.C. ?641. They are
simply alternate charges under ?641. See e. g. United States v. Jeter, 775 F2d 670, (6th Cir. 1985) (accused was
charged with stealing carbon paper of a grand jury indictment, along with the information itself).

8 Those courts that do not accept that information falls within the ambit of ?64] do not believe that infonnation is ?a
thing of value?, much less ?a record? within the statute?s tenns.

8



35834

See United States v. DiGilio, 538 F.2d 972, 978, fn 10 (3'd 1976) (?The government obviously
did not consider this merely a theft of information case, because the indictment charges
defendants only with converting to their use government records. Section 641 also prohibits
conversion of any ?thing of value?, and the government would presumably rely on this term in an
information case?); United States v. Jordan, 582 F.3d 1239, 1246 (1 1th Cir. 2009) (indictment
under ?641 alleged that defendant?s ?delivered the printouts which as property of the United
States had a value in excess of $1000?; in a separate count, indictment alleged that defendant
received ?a thing of value of the United States, that is, information contained in the NCIC
United States v. Girard, 601 F.2d 69, 71 (D. Conn. 1979) (?we are impressed by
Congress? repeated use of the phrase ?thing of value? in section 641 and its predecessors. The
word ?thing? notwithstanding, the phrase is generally construed to cover intangibles as well as
tangibles. Although the content of a writing is an intangible, it is nonetheless a thing of
value?).

19. The fact that cases have uniformly held that information falls under the ?thing of value?
prong of 18 U.S.C. ?641 belies any interpretation that information is fairly encapsulated within
any of the other words in the voucher, money.? Id. In other words, the fact
that courts rely on ?thing of value? to describe information means that information is not
encapsulated within the word ?record? under 18 U.S.C. ?64l. Thus, even if the Government
had charged PFC Manning with stealing or converting ?records? (which it did not?it charged
databases), it has not charged him with stealing or converting ?information.? See also United
States v. Fowler, 932 F.2d 306, 309-310 (4th Cir. 1991) (?Fowler was not charged with
conveying abstract information. He was charged with conveying and converting documents,
which, although copies, were things of value and tangible property of the United States. True,
the documents contain information, but this fact does not deprive them of their qualities as
tangible property and things of

D. The Government Tries to Hide the Fact that ?Records? and ?Copies? Are
Fundamentally Different for the Purposes of 18 U.S.C. ?64l

20. The Government seeks to gloss over the fact that ?records? and ?copies of records? are two
very different things in terms of identifying the actual property that was allegedly stolen or
converted and valuing that property. See United States v. Morison, 844 F.2d 1057, 1077 (4th
1988) (distinguishing between theft of original information versus theft of copies: ?Those cases
involved copying. The defendant?s possession in both cases was not disturbed. This case does
not involve copying; this case involves the actual theft and deprivation of the government of its
own tangible See also United States v. Hubbard, 474 F. Supp. 64, 79 (D.C.D.C.
1979) (indictment charging the defendant with stealing ?documents and photocopies thereof?;
?therefore the indictment?s claim that the defendants violated section 641 by copying
government documents through the use of government equipment withstands the defendants?
motion to dismiss because government-owed copies were taken.

21. The Govemment?s position on this reads, in its entirety:

The accused stole and converted records maintained on United States Government
computer systems. The Defense argues that a fatal variance exists because the

35835

Charge Sheet speci?es records and not copies of records. See Defense 641
Motion 1] 4. The records compromised by the accused are the records maintained
by the United States. The United States maintained copies of the records because
they were digitally stored on United States Government computer systems. In
this case, any distinction between copies of the records is feckless because the
records were stored digitally. See DiGilz'o, 538 F.2d at 978 (referring to theft of
copies as ?an asportation of records owned by the United States?) (emphasis
added). This distinction carmot be a material variance because it does not change
the nature of the offense, let alone substantially change the nature of the offense,
increase the seriousness of the offense, or the punishment of the offense. Thus,
any variance is not material.

Moreover, any variance between a digital record and a digital copy of the same
record is not prejudicial. The distinction does not place the accused at risk of
another prosecution because the accused is charged with stealing and converting
the actual records, which he in fact stole and converted. Nor did the distinction
affect the accused?s ability to prepare his defense because the United States
charged the accused with stealing and converting the records using a term,
?database,? the accused himself used to describe the records he compromised.

Government Motion at p. 17. The Defense is not really sure what the Government is saying. Is
the Government saying that PFC Manning stole the actual original records? Or is the
Government saying that PFC Marming stole digital copies that he downloaded the records
onto CDs and then released those digital copies) but that the distinction is not relevant for the
purposes of ?64l? Since there is no evidence that PFC Manning took the original digital
records, the Defense will assume that the Government concedes that PFC Marming took a copy
but believes there is no appreciable difference between an original and a copy. See id (?In this
case, any distinction between copies of the records is feckless because the records were stored
digitally?).

22. Whether one steals an original or a copy is of crucial signi?cance to an 18 U.S.C. ?64l
prosecution. This is readily apparent when one considers the valuation prong of the section. The
Government has failed to even attempt to address any of the Defense?s cases drawing a sharp
distinction between valuing a copy of a document, and valuing the original. See e. g. United
States v. DiGilia, 538 F.2d 972, 977 (3rd Cir. 1976)(court held that the ?a duplicate copy is a
record for purposes of the statute, and duplicate copies belonging to the government were
stolen.? In terms of valuing this duplicate copy, the court held: ?Irene Klimansky availed herself
of several government resources in copying DiGilio?s ?les, namely, government time,
government equipment and government United States v. Hubbard, 474 F. Supp. 64
(D.C.D.C. 1979) (court allowed prosecution to proceed on theory that ?the copies, allegedly
made from government documents, by means of government resources, are records of the

9 The Government cites DiGilz?o apparently for the proposition that it ?refer[s] to theft of copies as ?an asportation of
records owned by the United States.? Id. (emphasis in original). The Defense is not sure how this helps the
Government at all. In Dt'Gil:'o, the court distinguished between original records and copies of records. It held that
the copies of records made by the accused with govemment resources were themselves ?records? within the
meaning of the statute and that these copies needed to be valued. This is exactly the position of the Defense.

10

35836

government and thus the copies were stolen). Thus, whether PFC Manning stole ?records? or
?copies of records? is not something that the Government can simply sweep under the rug as
essentially ?no big deal.? What PFC Marming allegedly stole or converted, and its value, will
determine whether he will face five separate convictions carrying with them ?fty years of
potential imprisonment.

23. As stated in the Defense?s original motion, if the allegedly stolen or converted property is a
copy of a record, then it is the value of the copy that must be established g. the cost of the CD,
the time spent copying, the use of government servers for the copying, etc.). The Government
has introduced no evidence of the value of the copies allegedly stolen or converted in this case.
It cannot rely on the value of the originals to establish the value of the copies.

CONCLUSION

24. The Government claims that there is no difference between a ?database,? a ?record?, a ?copy
of a record?, or ?information.? Unfortunately, a database does not equal a record does not equal
a copy of a record does not equal information. All of these are different things. And the
Government must own what it charged: the databases. It is too late in the game, after the close
of evidence, to explain what it ?really meant.? The Government had the Charge Sheet to explain
what it ?really meant.? It had the Bill of Particulars to explain what it ?really meant.? It had the
Instructions to explain what it ?really meant.? What it really meant is that PFC Manning stole
certain databases. Full stop. If, in its mind, it con?ated databases with copies of records with
information, that is not the Defense?s problem. The Defense was on notice that it had to defend
against a charge that PFC Marming stole or converted certain ?databases.? PFC Manning did no
such thing. Accordingly, the Defense renews its request for a finding of not guilty.?

25. The role of the Court is not to help the Government to clean up the mess it has created. The
role of the Court is to determine, by looking at applicable federal case law, whether the
Government has introduced any evidence of what it has charged: that PFC Manning has stolen or
converted certain databases. And the Defense submits that it has not.

Respectfully submitted,



I EDWARD BS
Civilian Defense Counsel

'0 If the Court does not grant this R.C.M. 917 motion and allows the Government to proceed with some variation of
?records? or ?information,? the Defense will likely ?le an additional R.C.M. 917 motion seeking to dismiss the
offense for lack of proof and/or to challenge whether ?infonnation? is properly within the ambit of ?64 1.

ll

35837

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DRAFT
INSTRUCTIONS:
v.

MANNING, Bradley E., PFC
U.S. Army,
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 15 July 2013

Fort Myer, VA 22211

For the speci?cation of Charge I, (Aiding the Enemy, in violation of Article 104, UCMJ), the
Government advised the Court that it is not offering evidence that PFC Manning knowingly gave
intelligence to a classi?ed entity speci?ed in Bates Number 00410660-00410664. Accordingly, the Court
makes the following amendment to element (1) in the Instruction for the speci?cation of Charge I at AE
410:

Change:

Current Instruction: That at or near Contingency Operating Station Hammer, Iraq, between on or
about I November 2009 and on or about 27 May 2010, the accused, without proper authority, knowingly
gave intelligence infonnation to certain persons, namely: al Qaeda, al Qaeda in the Arabian Peninsula,
and an entity speci?ed in Bates Number 00410660 through 004 I 0664 (classi?ed entity);?

Amended Instruction: That at or near Contingency Operating Station Hammer, Iraq, between on or
about I November 2009 and on or about 27 May 2010, the accused, without proper authority, knowingly
gave intelligence infonnation to certain persons, namely: al Qaeda and al Qaeda in the Arabian
Peninsula;?

So ORDERED this 15"? day ofJu|y 2013.



DENISE R. LI
COL, JA
Chiefludge, Judicial Circuit

35838

David Coombs


From:

Sent: Friday, June 21, 2013 12:32 AM

To: David Coombs

Subject: Re; Question

Sir,

I do not remember who said it, i do know that it was put out to me when i got there in November. So it was
prior to me arriving.

From: David Coombs
re: ~An mar? Law
Sent: Thursday, June 20, 2013 8:16 PM

Subject: Question

Chief,

I wanted to ask you a follow up question on what you told me during our last conversation. You had told me
that the S2 Section permitted soldiers to place a shortcut for an executable file on the desktop of the DCGS-A
computers or to run an executable ?le from a CD on their DCGS-A computers. Do you recall when this
guidance was put out? Also do you recall who might have said that this was permitted?? Thank you.

Best,
David

David E. Coombs, Esq.

Law Of?ce of David E. Coombs

11 South Angel] Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, including attachments, 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 prohibited.

6-

35839

UNITED STATES OF AMERICA
Government Brief
on 18 U.S.C. § 641
and Intangible Property,
to include Information

V.

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

17 July 2013
RELIEF SOUGHT

The United States respectfully requests that the Court deny the Defense Motion for
Directed Verdict: Charge II, Specifications 4, 6, 8, 12 and Defense Motion for Directed Verdict:
Specification 16 of Charge II because the United States has presented evidence for each element
of each specification.
BURDEN OF PERSUASION AND BURDEN OF PROOF
"A motion for a finding of not guilty shall be granted only in the absence of some
evidence which, together with all reasonable inferences and applicable presumptions, could
reasonably tend to establish every essential element of an offense charged." Rule for CourtsMartial (hereinafter "RCM") 917(d). "The evidence shall be viewed in the light most favorable
to the prosecution, without an evaluation of the credibility of witnesses." Id.
FACTS
The accused is charged with giving intelligence to the enemy, in violation of Article 104,
Uniform Code of Military Justice (hereinafter "UCMJ"). The accused is also charged with
causing intelligence to be "wrongfiilly and wantonly" published in violation of Article 134,
UCMJ, eight specifications alleging misconduct in violation of 18 U.S.C. § 793(e), five
specifications alleging misconduct in violation of 18 U.S.C. § 641 (hereinafter "§ 641"), two
specifications alleging misconduct in violation of 18 U.S.C. § 1030(a)(1), five specifications
alleging misconduct in violation of Article 92 of the UCMJ. See Charge Sheet.
The accused pleaded guilty by substitutions and exceptions to Specifications 2, 3, 5, 7, 9,
10, 13, 14 and 15 ofCharge II. See Appellate Exhibit (hereinafter "AE") CDXLIV. The
accused did not plead guilty, inter alia, to Specifications 4, 6, 8, 12, and 16 of Charge II
(hereinafter "§ 641 specification"). See id.
WITNESSES/EVIDENCE
The United States does not request any witnesses be produced for this response. The
United States requests that the Court consider the Charge Sheet, Prosecution Exhibits
(hereinafter "PE"), testimony, and the Appellate Exhibits (hereinafter "AE") cited herein.

;

: .....',. •

PAGE

Oi'

' '. :-\y.

r,\Gh3

35840

LEGALAUTHORITY AND ARGUMENT
The Defense argues that information does not fafi within the ambit of^641. The
Defense argument fails because United States Circuit Courts ofAppeal have broadly applied
"thing ofvalue" to information. ^641reaches theft and conversion beyond the limitations of
common law. Thus, the precedent regarding^64Iholds that information isa"thing ofvalue."
LDATABASES AND RECORDS ARE UNITED STATES GOVERNMENTPROPERTY
A. Accused Compromised Databases and the RecordsTherein
The accused is charged with the theft or conversion of databases consisting ofanumber
ofrecords.
Charge Sheet. The evidence createsareasonable inference that the accused used
United States Govemment systems to create the records he conveyed to WikiLeaks.
Testimony ofDavidShaver;TestimonyofSA Williamson; PE 30; PE 50; PE 82; PE83;PE 92;
PE104. Where an accused avails himselfofUnited States Govemment equipment to create
copies, those copies remain records and property ofthe United States. L^^^^^^^^^^^^.^v.^^^^^^^^,
474FSupp64,79(DCCirl979);^^^^^^^^^^^.^v.D^G^^^^, 538 F3d972,978(
TheThird Circuit decided:
^The accuseds availed herselfofseveral govemment resources in
copying DiGilio^s files, nameIy,govemment time, govemment
equipment and govemment supplies.That she was not specifically
authorized to make these copies does not alter their character as
recordsofthegovemment.Aduplicate copy isarecord for
purposes ofthe statute, and duplicate copies belonging to the
govemment were stolen.
Because the accused utilized United States Govemment systems to compromise the charged
databases, to include their records, the database and records the accused compromised remained
recordsofthe United States. The United States did not retain these records; thus. Defense
arguments that the United States retained possession ofthe records is moot because the Defense
mistakes which records were actually stolen and converied. C^L^^^^^^^^^^^^.^v..^^^^^^^^,14
F.3dlOI4,1020 21 (4th Cir. 1994) (holdingthatthe United Statesneednothavethesoleinterest
inabid for it to be information that isa"thing of value" under^641). Furihermore, electronic
properiy that can later be reduced toatangible form is protected under^641. ^^^L^^^^^^^^^^^.^
v.^^^^^.^,284Fed.Appx.762,762-63 (IIthCir.2008)(upholdingaconvictionunder^641fbr
theft ofmoney where funds were directly deposited into an account).
B. Information Is an Intrinsic G^^hty ofthe Databases and Records
Information comprises an intrinsic quality ofthe compromised databases and records.
The information contained in databases and records can be used to authenticate them as
evidence.
Military Rule ofEvidence 901(b)(4). The information dictates the market price
for the information. ^^^Testimony ofMr. Lewis. The statutory reference to "any record"
includes the information held in the record and database. L^^^^^^^^^^^^.^v.^^^^^^^,446F.Supp.

35841

890,896(DCConnl978),^^^,^^^^^^^^^^^.^vG^^^^^,60IF2d69,70(2dCirl979)^
the Court found:
The phrase "other thing ofvalue" strongly suggests that something
other than the particular records themselves, i.e., the contents, are
probably covered as wefi. Indeed, the distinction betweena
govemment "record" and its contents is rather fine. The individual
of common intelligence would probably include the information
held inagovemment computer in the statutory term "record"
without reference to the catchafi phrase "thing ofvalue."
Therefore, the court held that an accused planning the unauthorized asporiation of
information held inagovemment data bank possessed sufficient notice that^641covered such
conduct.
Also, the accused signedanondisclosure agreements (hereinafier "NDAs") that
gave the accused notice that classified information is the property ofthe United States
Govemment.^^^PE59^7;PE60^7.The NDAs gave the accused additional notice that^641
applies to unauthorized disclosure ofclassified information. ^^^PE59^^4,10;PE60^^4,10.
Here,where the contents ofthe databases and records could be used to authenticate the charged
properiy,the information affected the value ofthe charged property,the individual of common
intelligence inl979,befbre computers were as widely used,would conclude thatarecord
includes information, and the accused signed NDAs stating that classified information is the
property ofthe United States Govemment, the accused had sufficient notice ofthe charged
property.
II A"THINGOFVALUE"UNDER^641 INCLUDES INFORMATION
^641makes criminal the theft or conversion ofa"thing ofvalue."^ ^641. "Althing of
value'can be tangible or intangible property." AECDX. Govemment information, although
intangible,"isaspeciesofpropertyandathingofvalue."
A. The Supreme Court Established the Broad Reach of^641
In discussing the pertinent legislative and judicial history of^641 and similar crimes, the
Supreme Couri observed that "the modem tendency is to broaden the offenseoflarceny,by
whatever name it may be called, to include such related offenses as would tend to complicate
prosecutions under strict pleading and practice. L^^^^^^^^^^^^.^v..^^^^.^.^^^^^,342U.S.240,270^
n.28 (1952). The Court added that stealing and purioining were added "to cover such cases as
may shade into larceny,as well as any new situation which may arise under changing modem
conditions and not envisioned under common law....".^^. Thus,^64Iapplies to "acts which
shade into crimes but which, most strictly considered, might not be found to fit their fixed
definitions.".^^. In particular,^641 closed the "gaps" and "crevices" that allowedguilty men to
escape criminal liability.
at 271. ("What has concemedcodifiersofthe larceny-type
^In pertinent part,^^41states,"Whoeverembe^^les, steals, purloins, or knowingly converts to his use orthe use of
another, or without authorit^,sells,conveys or disposes of any record,voucher,money,or thing of value of the
Llnited states...I^slhall be fined underthis title or imprisoned not more than ten years, or b o t h . . . . " l ^ L l . ^ . C . ^
^41.

35842

offense is that gaps or crevices have separated particular crimes of this general class and guilty
men have escaped through the breaches. The books contain a surfeit of cases drawing fine
distinctions between slightly different circumstances under which one may obtain wrongful
advantagesfi-omanother's properiy."). To close the gaps, Congress included the word "steal," a
word "having no common law definition to restrict its meaning as an offense, and commonly
used to denote any dishonest transaction whereby one person obtains that which rightfully
belongs to another, and deprives the owner of the rights and benefits of ownership . . . ." See id.
(emphasis added).
Military courts also recognize the expansive scope of a thing ofvalue. See, e.g.. United
States V. Ward, 35 C.M.R. 834, 837 (A.F.B.R. 1965) (stating that a "thing ofvalue" under Article
123a, UCMJ, extends to every kind of right or interest in property, or derived from contract,
including interest and rights which are intangible or contingent or which mature in the future).
Since 1962 military courts distinguish between an "article of value," which is based on the strict
common law concept of larceny, and a "thing of value," which encompassed a broader scope
upon its implementation. See generally United States v. Mervine, 26 M.J. 482, 483-84 & nn.1-2
(C.M.A. 1988) (explaining that statutes may enlarge the scope of larceny, but the drafters
declined to do so for Article 121, UCMJ). Here, the Supreme Court has found that Congress
drafted § 641 to fill the gaps and capture all types of larcenies. See Morissette, supra. Thus, a
"thing of value" should be given its all-encompassing meaning with respect to the § 641
specifications. See Part II.B-C.1, infra.
Additionally, "[t]he military is a notice pleading jurisdiction." United States v. Fosler, 70
M.J. 225, 229 (C.M.A. 2011) (citing UnitedStates v. Sell, 3 C.M.A. 202, 206 (C.M.A. 1953).
"A specification is a plain, concise, and definite statement of the essential facts constituting the
offense charged. A specification is sufficient if it alleges every element of the charged offense
expressly or by necessary implication." RCM 307(c)(3). "An accused must be given notice as
to which clause or clauses he must defense against...." RCM 307(c)(3), discussion (citing
United States v. Fosler, 70 M.J. at 229. In Morissette, the Supreme Court held that § 641
possessed a broad reach under "strict pleading and practice." Morissette, 342 U.S. at 270 n.28.
Therefore, the broad reach of § 641 recognized in Morissette is more appropriate for the notice
practice used in military practice.
B. "Thing of Value" Includes Information
A "thing of value" includes intangible and tangible property. AE CDX; see, e.g., United
States v. Jeter, 775 F.2d 670 (6th Cir. 1985); Girard, 601 F.2d at 70. Accordingly, four Circuit
Courts of Appeal explicitly agree that a "thing of value" under § 641 includes information. The
Second Circuit held that the information reduced to writing in a document constituted an
intangible "thing of value" under § 641. Girard, 601 F.2d at 70-71. The Sixth Circuit concluded
information comprises govemment property or a "thing ofvalue" under § 641. Jeter, 775 F.2d at
680-82. Noting its agreement with the Second and Sixth Circuits, the Fourth Circuit similarly
determined that information is a "thing of value" under § 641. United States v. Fowler, 932 F.2d
306, 310 (4th Cir. 1991) (holding that conversion and conveyance of govemmental information
can violate § 641). The Eleventh Circuit upheld a conviction under § 641 for conveying
information in United States Govemment records. United States v. Jordan, 582 F.3d 1239, 1246

35843

(I Ith Cir. 2009). Similarly, the Third Circuit has found meritorious the argument that
interference with the exclusive use of information established a sufficient basis for criminal
liability under § 641. DiGilio, 538 F.3d at 978 (finding merit to the Govemment's argument that
a misappropriation of information falls under § 641 but declining to so hold where a technical
larceny was already proven).
Furthermore, additional circuits have held that § 641 embraces intangible property. The
Seventh Circuit has found the testimony of a witness to be a "thing of value." United States v.
Zouras, 497 F.2d 1115, 1121 (7th Cir. 1974) (finding a "thing ofvalue" under 18 U.S.C. § 876 to
include testimony); see also UnitedStates v. Croft, 750 F.2d 1354, 1359-62 (7th Cir. 1984)
(holding that § 641 applies to conversion of a student's services for a personal research project).
The District of Columbia Circuit held that a "thing of value" under § 641 applied to conversion
of computer time and storage. UnitedStates v. Collins, 56 F.3d 1416, 1418-19 (D.C. Cir. 1995).
The Eighth Circuit decided that a "thing of value" reached arightin the intangible property of
flight time. United States v. May, 625 F.2d 186, 191-92 (agreeing with DiGilio and Girard,
supra). In sum, in addition to the four Circuit Courts of Appeal that hold information to be an
intangible "thing of value" under § 641, three additional Circuit Courts of Appeal apply a "thing
of value" broadly to intangible property. Therefore, a "thing of value" under § 641 applies to
information.
C. Precedent Cited by the Defense Inapposite
I. § 641 Reaches Beyond Common Law Definitions
A single Circuit Court of Appeals has held that a "thing of value" should be applied only
to tangible items. See Chappell v. United States, 270 F.2d 274, 277 (9th Cir. 1959). However, in
1986 the same Court that decided Chappell, citing criticism of the "limited, narrow, and
umealistic interpretation" of a "thing of value" under § 641 "reject[ed]" its prior decision sua
sponte. United States v. Schwartz, 785 F.2d 673, 680-81 & n.4 (9th Cir. 1986) (citing United
States V. Croft, 750 F.2d 1354, 1362 (7th Cir. 1984). In "rejecting" Chappell, the Ninth Circuit
stated that it had "tended clearly toward a broader scope of a thing of value, to include
intangibles." Id. (italics in original) (citing United States v. Sheker, 618 F.2d 607, 609 (9th Cir.
1980)) (holding information to be a "thing ofvalue" under 18 U.S.C. § 912); Friedman, 445 F.2d
at 1084-85; Whaley v. UnitedStates, 324 F.2d 356 (9th Cir. 1963) (holding implicitiy
information to be a "thing of value"). Moreover, the Ninth Circuit noted that legislative history
cited in Schwartz undermined the decision in Chappell. Id. Therefore, the Ninth Circuit joined
other Circuit Couris of Appeals in finding a "thing of value" to be unambiguous, and therefore
not requiring the mle oflenity. See Schwartz, 785 F.2d at 681 (finding error in applying mle of
lenity to a "thing of value" under § 1954).
After deciding Schwartz, the Ninth Circuit supported its Chappell holding in United
States V. Tobias, 836 F.2d 449 (9th Cir. 1988). The Ninth Circuit distinguished the legislative
history of 18 U.S.C. § 1954 in Schwartz as part of the basis for its renewed support for Chappell.
Tobias, 836 F.2d at 451 n.2. Schwartz and Tobias were decided by different Circuit judges, and
any split exists only within the Ninth Circuit. Additionally, in Tobias, the Ninth Circuit
acknowledged the existence of the "'intangible goods' exception or 'classified information'

35844

exception to § 641" but did not invoke the so-called "exceptions" because they were inapplicable
to the tangible property at issue in Tobias. See id. at 451
The Ninth Circuit's holdings in Chappell and Tobias and Judge Winter's dissent in
UnitedStates v. TruongDinh Hung, 629 F.2d 908, 924-28 & n.21 (Winter, L, dissenting as to
application of § 641), contradict the Supreme Court's holding in Morissette. Judge Winter,
however, acknowledged that § 641 could be applied to theft ofUnited States Govemment
information on "a case-by-case basis." Truong Dinh Hung, 629 F.2d at 928 (citing Lambert, 446
F. Supp. at 899).'' In Chappell, the Ninth Circuit relied on the common law definition of
"conversion" to restrict application of § 641 only to tangible goods. Chappell, 270 F.2d at 277
("As Congress must have known, the words 'converts' and 'conversion' really have their origin
in the law of torts. The terms imply a dealing with goods or personal chattels."). Citing a
discussion of trover and conversion, the Ninth Circuit narrowed the scope of § 641. See id. at
277-78 (citing Olschewski v. Hudson, 87 Cal. App. 282 (Cal. App. 1927).
In Morissette, the Supreme Court decided that § 641 covered common law larceny and
"any new situation which may arise under changing modem conditions and not envisioned under
the common law. . . ." Morissette, 342 U.S. at 270 n.30 (emphasis added). Specifically, the
Supreme Court held that Congress broadened the reach of § 641 by adding "purloin" and "steal,"
the latter which has "no common law definition to restrict its meaning as an offense." Id.
(emphasis added). At common law, trover would lie for the unlawful taking or conversion of a
chattel or personal property. See, e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 44 (1989)
(citations omitted); United States v. Loughrey, 172 U.S. 206, 212 (1898); Johnson v. Weedman,
4 Scam. 495 (111. 1843). Reverting to common law constmction, the Ninth Circuit fhistrates
Congressional intent and binding precedent by ignoring the modem terms used by Congress.
These terms, "steal" and "purloin," lack any common law restrictions. Morissette, 342 U.S. at
270 n.30. Accordingly, the Supreme Court held that "[t]he history of § 641 demonstrates that it
was to apply to acts which constituted larceny or embezzlement at common law and also acts
which shade into those crimes but which, most strictly considered, might not be found to fit their
fixed definitions." Id. (emphasis added). The Ninth Circuit, applying the common law
definition ofconversion" appends such a "fixed definition." Therefore, imputing the common
law application ofconversion" defeats the purpose of § 641. See id.
2. Other Defense Precedent Inapplicable Here
Cited by the defense, Pearson v. Dodd, 410 F.2d 701, 703 (D.C. Cir. 1969) involved a
claim for the tort of invasion of privacy. Publishing a matter in the general public interest is a
defense to the tort of invasion of privacy by the publication. Id. Pearson is inapplicable
because it pertained to the persons who received copies of documents without authorization, not
the person who conveyed the documents without authorization. Id. at 705. Because Pearson
^ In Tobias, the items at issue were cryptographic cards who value came from their use as devices. Tobias, 836 F.2d
at 452. Both parties agreed that the devices did not contain information, and the Ninth Circuit accordingly treated
the device solely as tangible property. See id. at 451 -52.
^ Judge Winter does not explain the factors that would make application of § 641 to information appropriate in his
opinion. See Truong Dinh Hung, 629 F.2d at 928.

35845

analyzes tort law with respect to persons receiving documents, it is not germane to this courtmartial. See id. at 705 ("[WJhere the claim is that private information concerning plaintiff has
been published, the question of whether that information is genuinely private or is of public
interest should not tum on the manner in which it has been obtained.").''
Additional material cited by the Defense similarly offers no persuasive value. Professor
Nimmer's article and comment notes that no copyright exists in United States Govemment
documents. Melville B. Nimmer, National Security Secrets v. Free Speech, The Issues Left
Undecided in the Ellsberg Case, 26 Stan. L. Rev. 311, 320 (1974) (analyzing 17 U.S.C. § 8).
Having stated that no copyright exists in United States Govemment documents. Professor
Nimmer argues that the criminal penalties set forth in 17 U.S.C. § 8—the penalties for copyright
infringement—should apply to United States documents. See id. at 320-21 (acknowledging that
Congress can criminalize copying certain United States Govemment documents). This
incongmous argument offers no persuasive value. Indeed, as Professor Nimmer recognizes.
Congress can protect information in documents and has enacted legislation to criminalize certain
copying. See id. (noting that 18 U.S.C. § 793(b) "has made some copying criminal").
Finally, the Defense presents UnitedStates v. Morison, 844 F.2d 1057 (4th Cir. 1988) for
the proposition that § 641 does not capture the theft or conversion of information. In Morison,
the Fourih Circuit determined that United States v. Carpenter, 484 U.S. 19 (1987), resolved the
issue and held that "pure 'information'" may be the subject of statutory protection under § 641.
See Morison, 844 F.2d at 1077. The Fourth Circuit added that illegally disposing of United
States Govemment records and photographs to a third party constituted "a textbook application
of the crime set forth in § 641." Id. The Defense highlights Morison's reference to Pearson, but
the reference is inapposite as set forth above and in Part I because, in the instant matter, the
databases and records the accused asported were not retumed. See Morison, supra; Hubbard,
supra.
III. RULE OF LENITY
Military courts apply the mle of lenity when constming ambiguous criminal statutes. AE
CXXXIX (citing UnitedStates v. Schelin, 15 M.J. 218, 220 (C.M.A. 1983); UnitedStates v.
Cartwright, 13 M.J. 174, 176 & n.4 (C.M.A. 1982); UnitedStates v. Inthavong, M.J. 628, 630
(A. Ct. Crim. App. 1998)). The mle of lenity "requires courts to limit the reach of criminal
statutes to the clear import of their text and constme any ambiguity against the govemment." AE
CXXXIX (citing UnitedStates v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006). The mle oflenity,
however, does not preclude a theory of prosecution that employs "well-known" understandings
of the statutory terms. See Romm, 455 F.3d at 1001 (holding that the govemment's theory fell
within the plain meaning of the language of the criminal statute). Accordingly, the mle oflenity
may be applied "only if, after reviewing all sources from which legislative intent may be
gleaned, the statute remains tmly ambiguous." Inthavong, 48 M.J. at 630 (citing United States v.
Davis, 656 F.2d 153, 158 (5th Cir. 1981)).
A. Statutory Language Supports Inclusion of Information as a "Thing of Value"
"* In Pearson, the appellee was a United States Senator, and the court held that the published information "clearly
bore on the appellee's qualifications as a United States Senator." Pearson, 410 F.2d at 703.

7

35846

The starting point for statutory interpretation is the plain or ordinary meaning of the
language. See UnitedStates v. McCollum, 58 M.J. 323, 340 (C.A.A.F. 2003); United States v.
James, 63 M.J. 217, 221 (C.A.A.F. 2006) (stating that "afiindamentalmle of statutory
interpretation is that 'courts must presume that a legislature says in a statute what it means and
means in a statute what it says there'") (citing Connecticut Nat'I Bank v. Germain, 503 U.S. 249,
253-54 (1992)). When a statute is clear and unambiguous, courts need not and should not
consult the legislative history. Ratzlafv. United States, 5\0 U.S. 135, 147-48 (1994) ("[W]e do
not resort to legislative history to cloud a statutory text that is clear.").
The statutory definition of a "thing of value" is clear and unambiguous. A "thing" is
"the subject matter of a right, whether it is a material object or not; any subject matter of
ownership within the sphere of proprietary or valuable rights." Black's Law Dictionary (9th ed.
2009). Proprietary information comprises a property and right of ownership. See Carpenter,
484 U.S. at 25 (recognizing as worthy of protection a property right in confidential business
information). Thus, information is a property right under the plain meaning of a "thing of
value." The Supreme Court supported this finding when it determined that "stealing" captures
any transaction depriving an owner ofrightsand benefits. See Morissette, 72 U.S. at 270 n.28.
To the extent the Ninth Circuit rejects this plain meaning, it does so by reference to
"conversion," which is a separate and distinct term. Moreover, the Supreme Court rejected
limiting § 641 to common law definitions. See id. Therefore, the Ninth Circuit's holding in
Chappell contradicts Morissette but does not contradict the plain meaning of a "thing of value."^
Although the statutory text and legislative history support the interpretation of the United
States in this case, the simple existence of some statutory ambiguity is not sufficient to warrant
application of the mle oflenity. Muscarello v. United States, 524 U.S. 125, 138 (1998). Most
statutes are ambiguous to some degree; consequently, the "mere possibility of articulating a
narrower constmction.. .does not by itself make the mle of lenity applicable." Id. (quoting Smith
V. United States, 508 U.S. 223, 239 (1993)). The Supreme Court has stated that "the mle of
lenity only applies if, after considering text, stmcture, history, and purpose, there remains a
'grievous ambiguity or uncertainty in the statute,' such that the Court must simply guess as to
what Congress intended." Barber v. Thomas, 130 S. Ct. 2499, 2508-09 (2010) (quoting
Muscarello, 524 U.S. at 139). In this case, there is no grievous ambiguity or uncertainty.
B. Legislative and Judicial History Supports the United States' Theory
Assuming, arguendo, the statutory text is ambiguous, the relevant legislative history and
precedent confirm the United States' interpretation of § 641 and a "thing of value."^ As
described above in Part II.B-C, six Circuit Courts of Appeal have applied a "thing of value" to
intangible property. Moreover, four Circuit Courts of Appeal have applied a "thing of value"
^ The Ninth Circuit reinterprets "conversion," whose definition need not be decided to determine what constitutes a
"thing of value."
^ The United States makes this argument based on Morissette's interpretation of the legislative history. The United
States has been unable to locate the legislative history. To obtain the legislative history, the United States would
have to send an attorney to the Library ofCongress. The United States offers to obtain the legislative history if it
would please the Court.

8

35847

specifically to "information," and a fifth Circuit Court of Appeal found merit to the United
States' argument presented herein. Furthermore, as described in Part II.C.1, the Ninth Circuit's
mling in Chappell contradicts legislative intent of the scope of § 641 as detailed in Morissette.
See generally Lambert, 446 F. Supp. At 893-95 (describing a morefiexibleapproach for
interpreting § 641 as appropriate given Morissette). In particular, Chappell creates the types of
"gaps" and "crevices" Congress sought to preclude by enacting § 641. See Morissette, supra.
Therefore, applying "thing of value" to reach "information" follows legislative intent and
judicial precedent and rather released to unauthorized individuals.
CONCLUSION
The Defense argues that information does not fall within the ambit of § 641. The
Defense argument fails because United States Circuit Courts of Appeal have broadly applied
"thing of value" to information. § 641 reaches theft and conversion beyond the limitations of
common law. Thus, the precedent regarding § 641 holds that information is a "thing of value."

/lAiAfkALEXANDER S. VON ELTEN
CPT, JA
Assistant Trial Counsel

I certify that I served or caused to be served a tme copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 17 July 2013.

{^^i^
ALEXANDER S. VON ELTEN
CPT, JA
Assistant Trial Counsel

35848

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APPilLLATE HXHm;T GOl
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OF
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35849

Fein, Ashden MAJ USARMY MDW (US)

Subject:
Attachments:

David Coombs [coombs@armycourtmartjaldefense.com]
Wednesday, July 17, 2013 5:34 PM
Lind, Denise R COL USARMY (US)
Tooman, Joshua J CPT USARMY (US); Hurley, Thomas F MAJ USARMY (US); Bennett,
Jessice D SSG USARMY (US); Morrow, JoDean (Joe) III CPT USARMY USAMDW (US);
Overgaard, Angel M CPT USARMY (US); Whyte, J Hunter CPT USARMY (US); von Elten,
Alexander S (Alec) CPT USARMY (US); Mitroka, Katherine F CPT USARMY (US); Ford,
Arthur D Jr CW2 USARMY (US); USARMY Ft McNair mdw Mailbox MDW Court Reporters
0MB; Raffel, Michael J SFC USARMY (US); Parra, Jairo A (JP) CW2 USARMY USAMDW
(US); Fein, Ashden MAJ USARMY MDW (US)
Additional Case for Defense Filing
U.S. v. Veloria.docx

Follow Up Flag:
Flag Status:

Follow up
Completed

From:
Sent:
To:
Cc:

Ma'am,

I have attached an ACCA case that I w i l l reference during tomorrow 641
argument.
v/r
David
David E. Coombs, Esq.
Law Office of David E. Coombs
I I South Angell Street, #317
Providence, RI 02906
T o l l Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs(aa rmvcourtmartialdefense.com
www.armycourtmartialdefense.com

***Confidentiality Notice: This transmission, including attachments, may
contain confidential attorney-client information and i s intended f o r the
person(s) or company named. I f you are not the intended recipient, please
n o t i f y the sender and delete a l l copies. Unauthorized disclosure, copying
or use of t h i s information may be unlawful and i s prohibited.***

APPELLATE EXHIBIT
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35850

UNITED STATES OF AMERICA
RULING: Defense Motions
For Findings of Not Guilty RCM 917
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

18 July 2013

On 4 July 2013, the Defense filed four Motions for Findings of Not Guilty in accordance
with (lAW) RCM 917 for the following offenses alleging that the Government has failed to
present evidence to prove one or more elements of those offenses (AEs 593-596).
(1) Aiding the Enemy, in violation of Article 104, UCMJ (the specification of Charge 1). The
Defense challenges one element and specifically asserts the Govemment has not provided
evidence that proves the accused knowingly gave intelligence information to certain persons,
namely: al Qaeda, and al Qaeda in the Arabian Peninsula. The Court's instructions define
"knowingly." "'Knowingly' requires actual knowledge by the accused that by giving the
intelligence to the 3"^^ party or intermediary or in some other indirect way, that he was actually
giving intelligence to the enemy through this indirect means. This offense requires that the
accused had a general evil intent in that the accused had to know he was dealing, directly or
indirectly, with an enemy of the United States. 'Knowingly' means to act voluntarily and
deliberately. A person cannot violate Article 104 by committing an act inadvertently,
accidentally, or negligently that has the effect of aiding the enemy."
(2) Fraud and Related Activity with Computers, in violafion of 18 U.S.C. § 1030(a)(1) and
Article 134, UCMJ (specification 13 of Charge II). The Defense asserts the Government has not
provided evidence that the accused exceeded authorized access on a Secret Internet Protocol
Router Network (SIPR) computer;
(3) Stealing, Purloining, or Knowingly Converting Records Belonging to the United States, in
violation of 18 U.S.C. §641 and Article 134, UCMJ (specifications 4, 6, 8, 12, and 16 ofCharge
II);
(4) Particularized motion with respect to specification 16 of Charge II.
On 11 July 2013, the Government filed three briefs in opposition (AEs 599-601). On 12
July 2013, the Defense filed a reply brief to the Govemment's brief in response to the Defense
Motion for a Finding of Not Guilty on the 18 U.S.C. §641 offenses (AE 603). On 16 July 2013,
the Defense supplemented their brief on the 18 U.S.C. §641 offenses with an email filing (AE
608). On 17 July 2013, the Government filed a supplemental response in opposition to the
email filing (AE 606). On 15 July 2013, the Court heard oral argument on the RCM 917
Motions for the specification of Charge I (Aiding the Enemy, in violation of Article 104, UCMJ)
and specification 13 of Charge II (Fraud and Related Activities with Computers, in violation of
1
APPELLATE EXHIBIT ^09
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35851

18USG§1030(a)(l)andArticlel34,UCMJ)Onl8July20I3,thepartieswillpresemoral
argument regarding the RCM917Motions for specifications4,6,8,12,andl6ofCharge II
(Stealing, Purloining, or Knowingly Converting Records Belonging to the United States, in
violation o f l 8 U S C § 6 4 1 a n d A r t i c l e 134, UCMJ)
This ruling sets forth the legal standard used by the Court in determining motions fora
finding of not guilty under RCM917and findings of fact and conclusions oflaw regarding the
RCM917motionsforArticlel04,AidingtheEnemyandI8USG§1030(a)(l)^Articlel34
After hearing oral argument on the motions, the Court will issueasupplemental ruling for thel8
USG§641^Articlel34offenses
TheLa^^
1. PFC Manning has elected trial by militaryjudge alone, thus, the Court acts in two capacities.
As the factfinder,the court must determine whether the Govemment has proven each and every
element of each offense charged beyondareasonable doubf In considering this Motion fora
finding ofNot Guilty by the Defense, the Court acts in its interlocutory capacity and decides the
motion under the lesser standard required inRCM917.
2. RCM917Standard: Amotion forafinding of not guilty shall be granted only in the absence
of some evidence which, together with all reasonable inferences and applicable presumptions,
could reasonably tend to establish every essential element of an offense charged. The evidence
shall be viewed in the light most favorable to the prosecution,without an evaluation ofthe
credibility ofwitnesses. RCM917(d).
3. Should the Court grantafinding of not guilty to an element of the greater offense for an
offense to which PFC Marming has pled guilty toalesser included offense, the Govemment
would be precludedfi^omproceeding on the greater offense. RCM917(e).
RCM917

Article 104, UGMJ,AidingtheEnemy^

Findings ofFaet^
1. The Court has examined the prosecution exhibits, defense exhibitJ,and testimony ofthe
witnesses set forth in the^itnesses^Evidence portion of the Govemment brief(AE 600). This
provides some evidence that between on or aboutlNovember 2009 and 27 May2010the
accused:
(1) was an enlisted Soldier who wasatrained all-source intelligence analyst (35F). Theaccused
trained and passed35FAdvancedlndividualTraining(AIT). This training identified al Qaeda as
aterrorist group.It also includedalesson on terrorist use of the internet and lessons on
information security (INFOSEC) to include the classification process,why information is
classified, restrictions on access to classified information, storage and safekeeping ofclassified
information to include individual responsibility to safeguard classified information and to ensure
that unauthorized persons do not gain access to classified information. The training further
instructed35F Soldiers that the enemy will attempt to discover how and when theU.S.is

35852

conducting operations. As such, critical information(anything that helps the enemy obtain an
advantage over theU.S.)including tactics,techniques and procedures (TTPs),unit capabilities
and intent, and personal^family information must be protected. The training completed by the
accused warned that operational activities should not be discussed on the internet or on email,
and Soldiers should always assume the adversary is reading posted material.
(2) preparedaslide show dated 13 Jun 08 entitled "Operations Security(OPSEC)" that defined
critical information, identified adversaries, listed common OPSEC leaks, and concluded with the
need to avoid public disclosure ofcritical information to include posting information on the
internet.
(3) signed two nondisclosure agreements dated7April 2008 andI7September 2008,
respectively,where he acknowledged that he received and understoodasecurity indoctrination
conceming the nature and protection of classified information including the procedures to be
followed in ascertaining whether persons to whom the accused contemplates disclosing classified
information have been approved for access to it and that the accused has been advised that the
unauthorized disclosure ofclassified information could cause damage or irreparable injury to the
U.S.or could be used to the advantage ofaforeign nation.
(4) maintainedavarietyofintelligence publications on his external hard drive. Portions ofthe
publications address use ofthe intemet by terrorist organizations and opposing forces.
(5) deployed to Forward Operating Base (FOB)Hammer,Iraq on or about October 2009 and
remained deployed there past May2010. He had access to the classified information on the
Secret Internet Protocol Router(SIPR)network on the Defense Common GroundSystem-Army
(DCGSA)computers in the 2^^ Brigade (BDE)SCIF. The accused was working as an allsource
intelligence analyst, using the sigacts on the ClDNEIdatabase to develop intelligence products
that involved pattern analysis. The accused downloaded, indexed, and plotted CIDNE-1 sigacts
on maps based on locations and enemy threats. The accused was aware that the enemy also
engaged in similarpattern analysis aboutU.S.TTPs and movements. The accused sent to
WikiLeaks the same CIDNE-1 database and sigacts he used to develop pattern analysis with the
intent that it be disclosed to the public.
(6) accessed theACIC report published onl8March 2008 entitled "^kileaks.org^An Online
Reference to Foreign Intelligence Services, Insurgents, orTerroristGroups7"onlDecember
2009,29 December 2009,lMarch2010and7March2010 TheACIC reportwasa
counterintelligence analysis report analyzing the threat posed by ^ikileaks.org following the
release of2000 pages ofU.S.ArmyTablesofEquipment in Iraq and Afghanistan from April
2007 and release of other classifiedU.S.information. The report listed as an intelligence gap
" ^ i l l the wikileaks.orgwebsite be used by FISS,foreign military services, foreign insurgents,
or terrorist groups to collect sensitive or classifiedU.S.Army information posted to the
wikileaks.orgwebsite^". The report also listedaconclusion that "It must be presumed that
foreign adversaries will review and assess any DoD sensitive or classified information posted to
the wikileaks.orgwebsite. websites similar toWikileaks.org will continue to proliferate and
will continue to representapotential force protection, counterintelligence,OPSEC,and
INFOSEC threat to the US Army for the foreseeablefiiture."Theaccused sent theACIC report

35853

toWikileaks between on or about 15February2010andI5March2010with the intent that it be
disclosed to the public.
(7) onl41^ebruary2010searched for 1RR5 391 0014 08 dated23March2008 entitled "Intemet
^eb Postings ofclassified and for Official Use Only Documents". The IRR discussed
wikileaks asapublicly accessible Internet website where leaked information, including
classified information, can be published to the public anonymously. The report described the
threat to the Marine Corps ofpublicationofMarine Corps sensitive or classified information.
On 15February20I0,the accused moved the IRR to his personal computer.
(8) onl4February 2010, searched fbrareportdated7January2010entitled"MARFOREUR
TRIP REPORT (MTR) discussing Marine Corps monitoring ofChaos Communication Congress
26C3 Here Be Dragons Conference held 26 30 December 2009." The report discussed the
conference discussion on^ikileaksasapublicly accessible Internet website where leaked
information, including classified information, can be published to the public anonymously. On
15February2010,the accused moved the MTR to his personal computer.
(9) made statements in his5^18March2010chats with Press Association/Julian Assange
indicating his understanding that WikiLeaks was "like an intelligence agency minus the
anonymous sources" and that WikiLeaks was seeking to publish Govemment controlled
information sent to them by the accused and other donors.
(10) made statements in his May2010chats with Adrian Lamo admitting that he gave
WikiLeaks the following classified information fr^om the SIPRNET: adatabase ofhalfamillion
events during the Iraq war...from 2004-2009...with reports, date time groups, lat lon locations,
casualtyfigures,260,000 state department cables from embassies and consulates all over the
world, classified cable fromU.S.embassy Reykyavik on Icesave dated 13 JanlO, the Gharani
airstrike video from CENTCOM.smil.mil; the Apache video, and the JTF GTMO papers. The
accused also made statements that the 260,000 classified cables from the Net Centric Diplomacy
database that he sent toWikiLeaks would be released to the public in searchable format.
Conclusion ofLa^^
The accused'straining and experience as an all source intelligence analyst, his preparation of
intelligence products while deployed in Iraq,acombat zone, using the ClDNEIdatabase while
contemporaneously sending the entire database toWikiLeaks for public disclosure and worldwide publication, the volume of classified information from the Depariment ofDefense and the
Department ofState that the accused admitted to disclosing toWikiLeaks, and the accused's
search for and downloading ofcounterintelligence documents reporting the threat posed by
WikiLeaks, considered together, provide some evidence from which, together with all reasonable
inferences and applicable assumptions,viewed in the light most favorable to the prosecution,
without an evaluation ofthe credibility ofwitnesses, could reasonably tend to establish that the
accused actually knew he was dealing with the enemy and actually knew that by sending such
information toWikiLeaks with the intent that it be broadcast to the public, he was knowingly
providing intelligence to the enemy. The "intelligence gap"evidence in theACIC report as well

35854

as laudable motive evidence by the accused goes to the weight of the evidence,adecision
properly determined by the fact finder.
RCM 917

18 U.S.C. ^1030(a)(l),FraudandRelatedActivity^ith Computers

Findings ofFact^
1. The Govemment'stheory for specification 13 of Charge II is that the accused "exceeded
authorized access" by accessing and downloading classified information usingWget,
unauthorized software on Army computers and on the DCGS-A computers.
2. 18U.S.C.§1030(e)(6) defines the phrase "exceeds authorized access" as "to accessa
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." There isasplit in the federal circuits
regarding whether this definition is an access only restriction or whetherarestriction on useof
the information accessed can violate the statute as well. ^^^^^^^^^^^^^^^^^^G^^^^^^^^^^^^
^^^Bf^^.^^B^^^B .^^^^^^^^77^^^^^^7.^^^^^^G^^^^^^^^^^^1^^^^^^^^^^

^^^^^.^,G^^^^^^,^^^^^^^^^,87-JANFlaBL36 (January 2013)
3. This Couri has issued two previous rulings dated8June2012(AE 139) andl8July2012(AE
218) in response to Defense Motions to Dismiss specificationsl3andl4ofCharge 11. In those
rulings, the Court found ambiguity in the statute, applied the rule oflenity,and ruled that the
Court would instruct in accordance with the narrow interpretation that"exceeds authorized
access" is limited to violations ofrestrictions on access to information and not restrictions on the
use ofinformation. The Court specifically ruled "Restrictions on access to classified information
are not limited to code based or technical restrictions on access. Restrictions on access to
classified information can come fiomavariety of sources, to include regulations,user
agreements, and command policies. Restrictions on access can include manner ofaccess. User
agreements can also contain restrictions on access as well as restrictions on use. The two are not
mutually exclusive. The Couri does not find this issue capable ofresolution prior to the
presentation ofevidence. These issues are properly decided afl^er the formal presentation ofthe
evidence asamotion fbrafinding ofnot guilty oramotion for finding that the evidence is not
legally sufficient."
4. The accused pled guilty to lesser included offenses of specifications 13andl4of Charge II.
The Government advised the Court it is not going forward with the greater offense for
specificationl4ofChargeII.
5. In line with the Court'sl8July 2012 order, the Defense challenges the Government theory on
legal grounds and moves foraFindingofNot Guilty. Specifically,the Defense argues that there
were no restrictions on the accused'saccess to the Department ofState (DOS) Net-Centric
Diplomacy (NCD)database or his ability to download the records in the NCD imposed by either
DOS or DoD. The accused would have the same access to the NCD whether he usedWget to
download the files rapidly or whether he downloaded them slowly by click/save. Thus, the
Defense argues,even i f ^ g e t is an unauthorized program, it is not an access restriction for
purposesofI8USC§1030(a)(l)

35855

6. The Defense cites^^^^^^^^7^^^^^^.^.^77^.^^^^^^v.^^^^^^A^^v^.^^^
2012^L 2522963 ( D N H ) , a c i v i l case underl8USC 1030(a)(2)(C) where thedefendants
violatedahospital computer use policy by connecting large removable storage devices to
download information. The court held that this wasause restriction not an access restriction
("Of course, the distinction between an employer imposed "use restriction" and an "access
restriction" may sometimes be difficult to discern, since both emanate from policy decisions
made by the employer decisions about who should have what degree of access to the
employer'scomputer and stored data and, once given such access, the varying uses to which
each employee may legitimately put those computers and the data stored on them. But, simply
denominating limitations as "access restrictions"does not convert what is otherwiseause policy
to an access restriction. Here, the hospital'spolicy prohibiting employees from accessing
company data for the purpose ofcopying it to an extemal storage device is not an'access'
restriction; it isalimitation on the use to which an employee may put data that he or she is
otherwise authorized to access. An employee who is given access to hospital data need not
"hack" the hospital'scomputers or circumvent technological access barriers in order to
impermissibly copy that data onto an external storage device. The offending conduct in this case
is misuse of data the employee was authorized to access, not an unauthorized access of protected
computers and data.")
7. The Govemment has presented testimony by Special Agent (SA)David Shaver, Mr.Jason
Milliman, CPT Thomas Cherepko,and Mr.MarkKirtz thatWget is not authorized sofiware fora
DCGS-A computer and, even if it was,^get, as executable sofi^ware,was required to be
installed by Mr. Milliman on the DCGSAcomputers.The Govemment has also presented
evidence that the accused downloaded^get to his user profile on the DCGS-A computer he
usedintheSClF
8. The Defense has elicited testimony from Mr.Weaver and COL Miller thatWget was no
different than executable software such as games, and, even iftechnically prohibited, these
prohibitions were not enforced by the chain of command.
Conclusions ofLa^^
1. The Couri adheres to its mlings on interpreting "exceeding authorized access" in AE 139 and
218
2. Unlike^^^^^^^^T^^^^^^.^.^ 77^.^^^^^^^, this case involves classified information belo^
theU.S.govemment. The accused is charged underl8U.S.C.§1030(a)(l). Although the
definition fbr"exceeds authorized access" is the same for all ofthe sections ofl8U.S.C.1030,
access restrictions on classified information can be more stringent than for other information and
can include manner ofaccess restrictions designed to ensure the security and protection ofthe
classified information and to prevent the classified information from exposure to viruses, tro^an
horses or other malware.
3. Evidence that the accused used unauthorized software,^get, to access and download the
classified records charged in specification 13of Charge II provides some evidence from which.

35856

together with all reasonable inferences and applicable assumptions,viewed in the light most
favorable to the prosecution,without an evaluation of the credibility ofwitnesses,could
reasonably tend to establish that the accused "exceeded authorized access"onaSIPR computer.
The countervailing evidence presented by the Defense goes to the weight ofthe evidence,a
decision properly determined by the fact finder.
Ruling: The Defense Motions foraFindingofNot Guilty for the specification ofChargeland
specification 13 ofCharge II are Denied. The Courtwill issueasupplemental mling regarding
the Defense Motions foraFindingofNot Guilty for Specifications4,6,8,12,andl6of Charge
II in due course.
SoOrderedthisl8th day ofJuly 2013

DENISERLIND
COL,JA
ChiefJudge, L^ Judicial Circuit

35857

Value of Property

Property
Database

->

Cost of Production - Equip & Maint

Records

->

Cost of Production Original

Copies of Records

->

Cost of Production Copy

Information

->

Thieves' Market



Property

Value of Property

Database

Cost of Production - Equip & Maint

Records

Cost of Production Original

Copies ofRecords

Cost of Production Copy

Information

> Thieves' Market

APPELLATE EXHIBIT 6 ( 0
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35858

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REQUEST FOR
SPECIAL FINDINGS UNDER
ARTICLE 5I(d) OF THE
UNIFORM CODE OF MILITARY
MANNING, Bradley PFC JUSTICE AND R.C.M. 9I8(b)
U.S. Army,

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

DATED: 19 July 2013



RELIEF SOUGHT

l. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 91 8(b) and Article 5l(d) ofthe Uniform Code of Military
Justice (UCMJ), requests this Court to enter special ?ndings for the following speci?cations: The
Speci?cation of Charge I, Speci?cation I of Charge ll, Speci?cation 4 of Charge 11,
Speci?cation 6 ofCharge ll, Speci?cation 8 of Charge II, Speci?cation 1 1 of Charge
Speci?cation 12 of Charge ll, Specification 16 of Charge II, and Speci?cations 1-4 of Charge
The Defense also requests the Court to enter special ?ndings for the following greater offenses:
Speci?cation 2 ofCharge ll, Speci?cation 3 of Charge ll, Speci?cation 5 ofCharge ll,
Speci?cation 7 of Charge II, Speci?cation 9 of Charge ll, Speci?cation 10 of Charge II,
Speci?cation 13 of Charge II, and Speci?cation 15 of Charge II.

STANDARD

2. Pursuant to Article 5l(d) ofthc UCMJ and R.C.M. 9I8(b), in a trial by a court-martial
composed of a military judge alone, the military judge is required to make special ?ndings of
fact under request.

ARGUMENT

3. The defense requests that the Court enter special ?ndings for the speci?cations and charges
listed above when it announces its general ?ndings. The Court, as a general rule, should make
special findings on all matters upon which members would be instructed. United States v. Falin,
43 C.M.R. 702 (A.C.M.R. 1971); see also United States v. Truss, 70 MJ. 545 (A.C.C.A. 20] 1).

?Special findings are to a bench trial as instructions are to a trial before members.
Such procedure is designed to preserve for appeal questions of law. Cesario v.



35859

United States, 200 F.2d 232, 233 (1st Cir. 1952). It is also the remedy designed to
rectify judicial misconceptions regarding: the signi?cance ofa particular fact,
Wilson v. United States, 250 F.2d 312, 325 (9th Cir. 1958); the application of any
presumption, Howard v. United States, 423 F.2d 1 102, 1 104 (9th Cir. 1970); or
the appropriate legal standard, United States v. Morris, 263 F.2d 594 (7th Cir.
1959)?

United States v. Truss, 70 MJ. 545 (A.C.C.A. 201 1), quoting United States v. Falin, 43 C.M.R.
702 (A.C.M.R. 1971).

4. The Court should follow one of the suggested formats prescribed in Appendix of the
Department of the Army Pamphlet 27-9 to enter its special ?ndings.

CONCLUSION

5. The Defense requests this Court to enter special findings for each of the specifications and
charges as requested above.

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel

56?/twuczoa, 3. 4 .
THOMAS F. HURLEY

MAJ, JA

Defense Counsel



SHUA J. OOMAN
CPT, JA
Defense Counsel

35860

UNITED STATESOF AMERICA

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)
)
)
)
)
)
)

)

Manning, Bradley E.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
Fort Myer, Virginia 22211

Prosecution Notification
to the Courts
GALEvidence
19 July 2013

OnI8July 2013,the Court ordered the United States to set forth admitted evidence
related toauser'sauthorization to download or remove information from the United States
Forccs lraq Microsofi Outlook^SharePoint Exchange Server global address list (hereinafter
"GAL").In accordance with the Court'sorder, the United States proffers the following.
Army Regulation 25 2 (hereinafter"AR 25-2") defines an information system asa"^s^et
ofinformation resources organized for the collection, storage, processing, maintenance, use,
sharing, dissemination, disposition, display,or transmission ofinformation." Prosecution
Exhibit (hereinafier"PE") 93 at 86 87.^ AR25 2 adds thatthis "includes^Army Information
System^applications, enclaves, outsourced IT-based processes, and platform IT
interconnections."7^. The GAL collects, stores, and processes military information.
Testimony of CW4Nixon;Testimony of CW4Rouillard. The GAL is an information system
under AR25 2.
AR25 2prohibits Soldiers from using an employeeowned information system for
classified or sensitive information. PE93at47(citingAR25 2^431(a)).Furihermore,"^t^he
use of an^employeeowned information system^fbradhoc(onetime or infi^equent)processing
ofunclassified information is restricted and onlypermitted with ^Information Assurance
Managers,^Designated Approving Authority^,or commander approval."^^.(citingAR 25-2^431(b)). COL Miller testified that the accused was not authorized to engage in the charged
misconduct, to include the asporiation ofrecords and United States govermnent information to
WikiLeaks. ^^^Testimony of COL Miller.
AR25 2defines sensitive information as "^a^ny information the loss, misuse, or
unauthorized access to or modification ofwhich could adversely affect the national interest or
the conduct ofFederal programs, or the privacy to which individuals are entitled under5U.S.C.
§ 552(a)(The Privacy Act)
" P E 93 at2I(citingAR25 2^44(b)(2))(emphasisadded);PE
93 at 98(citingAR25-2definition of sensitive information); .^^^^^.^^AR 530 1 ^ 1 5(c)
(defining sensitive information to include, ^^^^^^^^^^^ information related to names, unit
assignment, or organizations); AR 530-1 ^2-l(stating that Soldiers will protect from disclosure
sensitive information to which they have access). Sensitive information includes,
"information in routine DOD payroll,finances,logistics, and personnel management systems."
PE 93 at 92. This list is nonexhaustive.
AR25-2also mandates that "^a^ll Army
personnel" will "protect and restrict access to all documentation...describing IS architectures.
' PE 93 is a copy of AR 25-2. The page numbers cited in this filing correspond to the page numbers printed in AR
25-2, not the electronic page numbers of the .pdf.

__„,...--.^m
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p%S:_.^:L2r/^0^

35861

designs, configurations,vulnerabilities, address listings, or user information." PE 93 at 38
(citingAR25 2^4-13(a))
The loss or misuse ofthe information in the GAL could affect or harm the privacy of
listed Servicemembers. ^^^TestimonyofCW4Nixon. The GAL contained personally
identifiable information. ^^^TestimonyofCW4Nixon;TestimonyofCW4Rouillard;
Testimony ofMr. Lewis. The GAL operates asa"phonebook"fbrauser. ^^^Testimonyof
CW4Nixon. The GAL identified, ^^^^^^^^^^^,auser'sname,usemame, domain, alias addresses,
certificates, unit, and phonenumbers 7^;.^^^ PE 47; PE 48; PE147(a);PE 148(b) This
information also revealed organizational stmcture. ^^^TestimonyofCW4Rouillard. The GAL
and its contents were not available to the public and were available onlyto authorized personnel.
i^^^TestimonyofCW4Nixon;TestimonyofCW4Rouillard. In2010,auserdidnothavethe
capability to export the GAL from the server onto an authorized NIPR computer. Testlmonyof
CW4Nixon
The loss or misuse ofthe information in the GAL could affect or harm military
operations and system security. ^^^TestimonyofCW4Rouillard;TestimonyofCW4Nixon.
Adversarial forces value and seek the GAL and its contents. ^^^TestimonyofCW4Rouillard;
Testimony ofMr. Lewis. The GAL reveals user names,which increases the ability ofa
malicious actor to compromise United States computer systems. ^^^TestimonyofCW4
Rouillard. Accordingly,amalicious actor could use the GAL for spear phishing attacks to
compromise United States computer systems. 7^. The GAL furiher reveals network architecture,
.^^^TestimonyofCW4Rouillard, thereby aiding an adversary'soffensive operations against
United States computersystems^^^PE 93 at38(citingAR25-2^413(a));.^^^^^.^^PE 93 at
22(citingAR25-2^3-3(c)(5)(mandating protection of system and network integrity)).
Additionally,the GAL could be used as pari ofasocial engineering attack against Soldiers.
Testimony of CW4Rouillard. Thus, the information in the GAL was sensitive and protected
under AR25-2^4-31(a)
The accused'scommander did not authorize the exfiltration of the GAL. ^^^Testimony
ofCOLMiller. Moreover,AR25-2prohibits downloading the GAL toaNIPR computer and
moving it toapersonal computer. ^^^TestimonyofCW4Rouillard(statingthatAR252
prohibits downloading the GAL toapersonal computer and that the ability to do an act ona
computer system does not mean the act is authorized); PE 93,.^^^^. The accused had no reason
to download the GAL to his personal computer because he could only send emails from his
NIPR computer. ^^^TestimonyofCW4Nixon. Therefore, AR25-2'sprohibition on usinga
personal computer for sensitive information applied to the GAL and its contents. ^^^PE93,
.^^^^^;^AR25-1^6-l(d)(l)(4December 2008) (limiting use ofUnited States Govemment
systems "to the conduct of official business or another authorized use"); PE 93 at 22(citingAR
25-2^3-3(c)(4)(5)(stating that users much protect information systems located in their
respective areas and take no actions that "threaten the integrity ofthe system or network")); PE
93 at 28(citingAR25 2^45(a)(7) (prohibiting transfer or possession ofinformation without
proper authority)).
In the time period when the accused extracted the GAL,WikiLeakspublishedatweet
requesting".mil email addresses." PE31. Extractsof74,000 email accounts from the GAL

35862

were found on the accused'scomputer. ^^^TestimonyofSpecial Agent Williamson;Testimony
ofSpecial Agent Johnson;Testimony of CW4Nixon (identifying Servicemember names and
email accounts inPE 47 andPE 48 as originatingfi^omthe GAL). The accused createdatasker
to describe his mission to "acquire and exfiltrate" the GAL. The accused'stasker defines the
purpose as "^t^oemail classified messages from USF-I'sCIDNE event log from 2004 to 2009."
This purpose suggests the tasker was used for previous compromises of sensitive information
and that accused'smission regarding the GAL was conducted with the same intent.
Consequently,whereAR25 2prohibited the accusedfi^omplacing the sensitive information on
his personal computer, the accused completed his crime when he completed the prohibited act
withacriminal intent.
^

hvsiW

ALEXANDER VON ELTEN
CPT, JA
Assistant Trial Counsel

I certify that I served or caused to be served a tme copy of the above on Mr. David
Coombs, Civilian Defense Counsel, via electronic mail, on 19 July 2013.

\V\^th
ALEXANDER VON ELTEN
CPT, JA
Assistant Trial Counsel

35863

UNITED STATES OF AMERICA
V.

Manning, Bradley E.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

SUPPLEMENTALRULING:
Defense Motions For Findings ofNot
Guilty RCM 917

24July2013

This ruling supplements the Court'sl8July2013 ruling and addresses the Defense
motions under RCM917forfindingsofnot guilty for specifications4,6,8,12,andl6of Charge
II (Stealing, Purloining, or Knowingly Converting (SPKC) Records orThingsofValue
BelongingtotheUnitedStates,inviolationofl8USG§641andArticle 134, UCMJ)
Defense Position: The Defense moves the Court to enterafinding ofnot guilty in accordance
withRCM917because:
1. In each ofthe specifications4,6,8,12,andl6,the Govemment charged the accused with
SPKC the actual databases themselves and did not allege in the charge that the accused SPKC
the records in the database, oracopy ofthe records in the database,or the information in the
records. This isafatal variance between what is charged and the evidence presented.
2. Even if properly charged, intangible property,such as information, is not within the scope of
18USG§64L
3. The Government has not proved substantial or serious interference with the Govemment'suse
and benefit ofthe charged databases. The databases, records, and information remained
available for the Govemment'suse without change after the alleged SPKCby the accused.
4. The Government has failed to adduce any value ofcopies or information.Should the Court
find that specifications4,6, 8,12,andl6properly charge SPKCofrecords, copies ofrecords, or
information, the Government has failed to adduce evidence ofthe valueofthe records,copies, or
the information contained therein.
5. For specificationl6ofChargeIL the Defense further alleges that the Govemment has failed
to present evidence that the .mil addresses found on the accused'spersonal Macintosh (MAC)
computerwcre theU.S. Forces^lraq Microsoft Outlook^SharePoint Exchange Server global
address list (USF-I GAL). The Defense further alleges that even if the accused downloadeda
GAL, the Government has failed to introduce evidence that he acted "with intent to deprive the
govemment ofthe use and benefit ofthe records" that the accused'sconduct was wrongful,or
that the accused'sconversion of the GAL caused serious or substantial interference with the
Govemment'sowncrship rights as the GAL was available for use with no change after the
accused allegedly converted it.
APPLLLATEEXHIBIT^^^^^^—
^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^

35864

Government Position: The Government opposes the Defense motion arguing that:
1. Specifications4, 6,8,12,andl6ofCharge II each identify the records in the relevant
database that the accused is charged with SPKC. Information is inherent within the definition of
record and database. Thus, there is no fatal variance between pleading and proof
2. The contents and information contained in Government records determine the criminality of
the SPKC ofthe records more than the form ofthe records.
3. For conversion purposes, the deprivation ofthe Govemment'sright to protect the contents of
confidential classified information can beamisuse that seriously and substantially interferes with
the Govemment'sproperty rights.
4. The Government provided evidence ofvalue in excessof^l,000.00 for specifications4, 6, 8,
12,andl6through the testimony ofMr. Lewis, by evidence ofthe cost of creating the records at
issue, and the costs of creating and maintaining the databases at issue via the database
management systems, infrastructure, and sofiware. The cost ofthe database management
infrastructure is appropriate evidence ofvalue because without it, the records would not exist and
could not be downloaded.
5. With respect to specificationl6ofCharge II,the Govemment argues that evidence presented
by the Govemment that the accused createdatasker to "exfiltrate" the GAL afier receivinga7
May2010tweetfromWikiLeaks seeking .mil addresses, that the accused extracted the74,000
addresses fiom the USFIGAL and placed the extracted information on his personal MAC
computer, together with evidence ofhis history ofdownloading classified government records
and information, transferring it to personal digital media, and sending the records and
information toWikiLeaks and testimony fiom CW4Nixon that the USF-I GAL contained names
and email addresses connected to the "iraq.centcom.mif'domain establish that the74,000 email
addresses came from the USF-I GAL pool and that the GAL contains usernames, domains, alias
addresses, ceriificates, unit, and phone numbers and reveals unit organizations structure,
information defined as "sensitive" per Army Regulations(AR) 25-2and 530-lestablishesthat
the accused SPKCthe USFIGAL from the possession of the United States with intent to
deprive the United States ofthe stolen property and that his conduct was wrongful.
6. In partB(l-5)ofitsbrief(AE 599),the Government identified the evidence admitted to
prove each ofthe elements for specifications4,6,8,12,andl6ofCharge II. The Court has
reviewed all ofthe testimony and examined the evidence set forth by the Government for each
specification as well as the briefs and oral argument presented by the parties.
Oral Argument: Onl8July2013,the Court heard oral argument on this motion and received
AE610,aProperty^ValueofProperty Chart fiom the Defense. Onl9July2013,the Court
received Prosecution Notification to the Court: GAL Evidence(AE612). On20July2013,the
Court held additional oral argument. During this oral argument, the Government conceded that
the evidence for specifications4and6of Charge II shows that the CIDNE-1 andAsigacts the
accused is charged with SPKCcomprisedapproximately25^oftheCIDNEIandAdatabases.
The Govemment also advised the Court that for specificationl6ofCharge II,the Government

35865

was going forward only with the 74,000 addresses allegedly downloaded by the accused rather
than charging the accused with SPKCthe email addressesofalll60,000 users on the USFI
GAL. The Government moved to amend specifications4,6,andl6ofCharge II to except "to
wit:" and substitute "to: wit,aportion o f for each specification. The Government further
moved the Court to allow evidence ofapro rata share of the database management costs for each
specification. The Defense opposed the amendments as major changes under RCM 603(d) and
moved the Court foramistrial under RCM915 with respect to specifications4,6,andl6
because the Defense had no opportunity to cross examine the valuation witnesses with respect to
pro rata share. The Defense arguesamistrial is manifestly necessary in the interest ofjustice
because the Government'saction to amend specifications4, 6,andl6ofCharge II afier
presentation ofthe evidence on the merits casts substantial doubt over the fairnessofthe
proceedings.
Findings ofFact^
1. Specifications4,6,8,12,andl6of Charge II all have the same charging stmcture:
In that Private First Class Bradley E.Manning, U.S.Army,did, at or near Contingency
Operating Station Hammer, Iraq,between on or about^applicabledatesj,steal,purloin, or
knowingly convert to his use or the use of another,arecord or thing of value ofthe United States
or ofadepartment or agency thereof, to wit:
Specification4: the Combined Information Data Network Exchange Iraq database containing
more than 380,000 records;
Specification 6: the Combined Information Network Exchange Afghanistan database containing
more than 90,000 records;
Specification 8: aUnited States Southern Command database containing more than 700 records;
Specification 12: the Department ofState NetCentric Diplomacy database containing more than
250,000 records;
Specificationl6: the United States Forces^Iraq Microsofi Outlook^SharePoint Exchange
Server global address list;
ofavalueofmorethan^l,000,in violation ofl8U.S.Code Section 641,such conduct being
prejudicial to good order and discipline in the armed forces and being ofanature to bring
discredit upon the armed forces.
2. Relevant instructions the Court will give for thel8U.S.C.§641offenses are:
To"steal" means to wrongfully take money or property belonging to the United States
government with the intent to deprive the owner ofthe use and benefit temporarily or
permanently.
"Wrongful" means without legal justification or excuse.
3

35866

To"purloin" is to steal with the element of stealth, that is,to take by stealth the properiy of the
United States government with intent to deprive the owner ofthe use and benefit ofthe property
temporarily or permanently.
A"taking"doesn'thave to be any particulartype of movement or carrying away.Any
appreciable and intentional change in the property'slocationisataking, even if the property isn't
removed from the owner'spremises. The accused did not have to know the United States
government owned the property at the time ofthe taking.
A"conversion" may be consummated without any intent to permanently deprive the United
Statesofthe use and benefit ofthe property and without any wrongful taking,where the initial
possession by the converter was entirely lawful. Conversion may include the misuse or abuse of
property. It may reach use in an unauthorized manner or to an unauthorized extent of property
placed in one'scustody for limited use. Not all misuseof government property isaconversion.
The misuse must seriously and substantially interfere with the United States govemment's
property rights.
"Value" means the greater of(l)the face, par, or market value, or (2)the price, whether
wholesale or retail. A"thing ofvalue" can be tangible or intangible property. Govemment
information, although intangible isaspecies ofproperty andathing ofvalue.
The market value of stolen goods may be determined by reference toaprice that is commanded
in the market place whether that market place is legal or illegal. In other words, market value is
measured by the priceawilling buyer will payawilling seller. (The illegal market place is also
known asa"thieves market".) "Cost price" means the cost of producing or creating the specific
property allegedly stolen, purloined, or knowingly converted.
4. The "thieves market" may be used to establish value so long as the Government presents
evidence ofthe value ofthe property or information at issue in the "thieves market". L^.^.v.
77^^^,12ML 890 ( A C M R 1982);^^vG^^^^^^^^,887 F2d790(7^^Cirl989)
5. The Court takes judicial notice that Black'sLaw Dictionary (9^^ ed.2009)definesadatabase
in relevant part as "a compilation ofinformation arranged inasystematic way and offeringa
means offinding specific elements it contains, ofien today by electronic means." TheCourt
takes judicial notice that Black'sLaw Dictionary definesarecord as "information that is
inscribed onatangible medium or that, having been stored in an electronic or other medium, is
retrievable in perceivable form." Databases are supported by database management systems,
infrastructure, and sofiware.
6. The records the accused is charged with SPKC in specifications4, 6, 8,12,andl6of Charge
II are maintained on classified electronic databases. The databases, records, and information
contained therein, are accessible only to individuals with security clearances who have been
approved by the Govemment to have access to the information. The stmcture ofthe databases
allows multiple authorized users to access and extract the information maintained on the
database simultaneously. The records in the database, and the information contained therein.

35867

may be extracted or downloaded from the database by authorized users, however, the records,
and information therein, remain in the database after extraction by user(s) in the same condition
as they existed prior to the extraction.
7. Specification 16 of Charge II, charges the accused with SPKC the USF-I GAL. The evidence
presented by the Government provides some evidence that 74,000 .mil addresses were found on
the NIPR supply room computer in the peter.bigelow account and on the accused's personal
MAC computer.
8. On 16 February 2012, the Defense filed a motion for a bill of particulars. In paragraph 10(a)
and (b), the Defense asked the following with respect to the specifications charging a violation of
18 U.S.C. §641: (1) What specific theory of culpability does the govemment intend to rely upon?
In other words, does the Government allege that PFC Manning "stole", "purloined" or
"converted"? and (2) If the Govemment is alleging that PFC Manning stole, purloined, and
converted the charged items, does each theory of culpability apply equally to every charged
item? On 8 March 2012, the Govemment responded to paragraph 10(a) and (b) of the Defense
request for a bill of particulars with a paragraph arguing that it should not be directed to submit a
bill of particulars because the Defense was attempting to restrict the Government's proof at trial.
In the paragraph the Government included the following sentence "Furthermore, the theft-related
offenses alleged in this case are of specific, identified databases." In the bill of particulars, the
Defense posed questions with regard to the Government's theory of prosecution. The Defense
did not seek more specificity as to the items charged. Nor did the Defense seek clarification after
receiving the Govemment's response. The Courtfindsthe language of the specifications
themselves, rather than the Government's bill of particulars, response provides the accused
notice of what the accused is charged with SPKC.
Conclusions of Law:
1. 18 U.S.C. §641 was intended to encompass all forms of common law larceny. Morissette v.
UnitedStates, 342 U.S. 246, 253 (1952). The statute encompasses SPKC of intangible
information. Intangible information is "a thing of value" under 18 U.S.C. §641. U.S. v. Matzkin,
14 F.3d 1014 (4"" Cir. 1994); U.S v. Lambert, 446 F.Supp. 890 (D.C. Conn. 1978), a f f d United
States V. Girard, 601 F.2d 69, 70 (2"'' Cir. 1979); U.S v. Collins, 56 F.3d 1416, 1420 and n. 3
(D.C. Cir. 1995) (While not central to our analysis, we note that every circuit, except one,
dealing with this issue has held that intangible property falls within the purview of §641.), See
e.g. UnitedStates v. Jeter, 775 F.2d 670, 680 (6"^ Cir. 1985) ("the Congress' very use ofthe
more expansive 'thing of value' rather than 'property' strongly implies coverage beyond mere
tangible entities."), cert, denied, 475 U.S. 1142 ...(1986); UnitedStates v. Croft, 750 F.2d 1354,
1361 (7"^ Cir. 1984) (services rendered constitute a thing of value); United States v. May, 625
F.2d 186, 191-92 (thing ofvalue includes flight time); UnitedStates v. Girard, 601 F.2d 69, 71
(2"^ Cir. 1979) (content of a writing, while an intangible, is a thing of value), cert, denied 444
U.S. 871.. .(1979). [Note 3] The Ninth Circuit in Chappell v. UnitedStates, 270 F.2d 274
(1959), held conversion was limited to tangible chattels under §641. This holding, however,
remains in doubt within the Circuit itself See United States v. Schwartz, 785 F.2d 673, 681 n. 4
(9"^ Cir. 1986) ("this court has not cited Chappell in support ofits limited interpretation of thing
of value since that case was decided in 1959"). Even if SPKC intangible information included

35868

inaSPKCoftangible information was notan offense u n d e r l 8 U S C § 6 4 L i t w o u l d constitute
an offense as charged in specifications4,6,8,12,andl6under clauses one and two of Article
134,UCML
2. Specifications4,6,8,and 12of Charge II,charge the accused with SPKCaspecified
database andanumber ofrecords contained within that database. Information is necessarily
included within the definition ofboth record and database. Thus,specifications4,6,8,andl2of
Charge 11 provide the accused notice that he is accused ofstealing the information in the
described records and databases described in the specifications and protect him from another
prosecution for the same conduct.There is no material or fatal variance between the pleadings
and the proof
3. In specificationl6ofCharge 11,the accused is charged with SPKCthe USF-I GAL. The fact
that there were fewer email addresses found on the accused'scomputer than included in the
USFIGAL is notamaterial variance. The evidence presented by the Government provided
some evidence to show that the USF-1 GAL was produced by incorporating user data from the
bottom up (brigade to division to USFI) with the domain Iraq.centcom.mil. Thus,asubsetof
the USF-I GAL,wouldbealesser included offense for the fact-finder.There is no material or
fatal variance between the pleading and the proof.
4. The Government has moved to amend specifications4, 6, andl6to conform with the
evidence that the records, and information therein, allegedly SPKCby the accused were portions
ofthe databases alleged to have been SPKCby the accused. The amendments proposed by the
Government do not change the nature ofthe offenses, addaparty,offense,or substantial matter
not fairly included in the original specifications. The proposed amendments do not mislead the
accused. The amendments make the offenses lesser included offenses ofthe original
specifications. They are minor changes under RCM 603(a). The Court grants the Govemment's
motion to amend specifications4,6,andl6to except the words "to wit"and substitute the words
"to wit: aportionof.
5. Astealing or purloining requires that the accused wrongfully take money or property
belonging to the United States with the intent to deprive the owner ofthe use and benefit
temporarily or permanently. The Government does not have to prove that the Government
sufferedaloss or was deprived ofthe use and benefit ofthe records, databases, or information
therein, to proveastealing or purloining for thel8U.S.C.§641specifications. The fact that the
Government sustains no loss or actually receives some service or benefit asaresult ofthe
accused'saction does not negate the accused'scriminal intent.
v^^^.^^,702 F.3dl62,169
n.2(4^^^Cir.2012)(1ndeed at least four circuits^the First, Fifih, Seventh, andD.C.Circuits^
have found thattheGovemmentneednotproveanactuallosstoestablishaviolationof§64L
^^^^^^7^^^^^^^^v7^^^^^^^^^^^^^,525 F3d60,62,64(l^^Cir 2008)(affir
conviction ofadefendant who used another person'sname and identifying information to obtain
afederalhousingvoucher);^^^^^^^^^^^.^v^^7^^^,8F.3d39,41,44 (D.C.Cir.l993)(affirming
the convictions oftwo brothers who helped others submit false claims for back pay undera
settlement agreement between an employer and the Equal Employment Opportunity
Commission); ^^^7^^^^^^^^v.^^^^^.^,761F2dl026,1027 28, 133 (5^^ Cirl985)(affirmi^
the convictions oftwo defendants who applied for and authorizedfiaudulentlivestock loans

35869

from the Farmers Home Administration, even though the money had actually been used to buy
livestock); ^^^7^^^^^^^^v^^^7^^,734F2d296, 298-301 (7^^ Cirl984)(affirmingthe
conviction ofadefendant attorney who had embezzled portions ofloans used by the Farmer's
Home Administration). .^^^.^^^^^^7^^^^^^^.^vG^^^^^.^,464F.2dll63,1164-65 (9^^^
(reversingaconviction under §641afier finding that the money that the defendant had stolen by
forging and negotiating government-issued checks had belonged toabank not the government)).
6. A"conversion" may be consummated without any intent to permanently deprive the
govemment ofthe use and benefit ofthe property and without any wrongful taking. Not all
misuse of government property isaconversion. The misuse must seriously and substantially
interfere with the government'sproperiy rights.G^^^^^^.^,464F.2d atl420;L^i^ V .^^^,625 F.2d
186,192 (8^^^Cir.l980)^^^^^^^^^.^^^^^^^^^(^^^^^^^7^^^^.^§222A(Onewhoisam
makeaparticular use ofachattel,and uses it inamanner exceeding the authorization, is subject
to liability for conversion to another whose right to control the use ofthe chattel is thereby
seriously violated.).
7. In this case, the Government elicited evidence that the Govemment maintained exclusive
possession and stringent controls over the classified information, records, and databases charged
inspecifications4,6,8,andl2ofCharge11. The Government authorized access to the
information and records only by individuals to whom the Government had given appropriate
security clearances. The Government maintained possession ofthe information and records on
classified SIPR computers. The Government provided further evidence that the accused
extracted and removed the classified records, and information therein, from the SIPR computer
in the 2^^ Brigade (Bde)SensitiveCompartmentedlnfbrmationFacility(SClF),downloaded
them to his own portable digital media or platform, removed the portable digital media and
platform fiom the 2^^ BdeSClF,transferred the records, and information therein, to his personal
portable digital media or platform in his private housing unit, and then transferred the records,
and information therein, toWikiLeaks. The Courtfindsthis to be some evidence ofamisuse of
Govemment records that could seriously and substantially interfere with the Government's
property right to control the charged records, and information therein, to withstandamotion fora
finding ofnot guilty underRCM917. For specificationl6ofCharge 11,the Government is not
pursuingatheory of conversion.
8. SPKCof electronic data doesn'tcompare neatly to cases where the defendant made
photocopies of government records, replaced the originals,and SPKCthe photocopies.With
SPKC, there are no copies to steal until the accused accesses the digital information and makes
the extraction. The original digital database and records remain in the database management
system during and after extraction.
9. The Government has not charged the accused with SPKCacopy of Govemment records in
t h e l 8 U S C §641specifications TheGovemmentischargingtheaccusedwithstealingand
purloining the databases, electronic records, and information therein, at issue by accessing the
relevant database, extracting the records from the database management system structure,
placing the information on private platforms or digital media while in the 2^^ BdeSCIF at
Forward Operating Base (FOB) Hammer,and asporting the downloaded records, and
information contained therein, to the accused'spersonal platforms or digital media outside the

35870

SCIF in his housing unit. The Govemment'stheory is that the accused knowingly converted the
records, and information therein, in specifications4,6, 8,and 12by sending them toWikiLeaks.
10. The value of the information the accused is alleged to have SPKC in specifications4, 6, 8,
12,andl6may be considered to determine whether the value of the charged database, records,
or information therein, is over^l,000.00. That said, the accused is not charged in specifications
4,6,8,12,orl6ofCharge II with SPKCany ofthe database management systems,
infrastructure, or software. As amended, the accused is not charged with SPKC the entire
databases in specifications4,6, andl6of Charge II.
11. The Government argues that the databases, records, and information in these specifications
would not exist without the database management system, infrastructure, and sofiware. The
Government proposes the value ofthe cost ofcreating and maintaining the database management
system,infrastructure, and software asabasis to value of the databases, records, and information
therein, for specifications8andl2ofCharge 11. The Govemment further proposes to establish
the value for the records,and information contained therein, by establishing the value ofapro
rata share ofthe cost ofcreating and maintaining the database management system,
infrastructure,and sofiware for the databases in specifications4,6,andl6ofCharge II. A
similar argument could have been advanced in L^.^.v.^^^,625 F.2dl86 (8^^ Cir. 1980) to allow
the Government to value the converted fiighttime by valuing the cost and maintenance ofthe
airplane itself, because the converted fiighttime couldn't exist without the existenceofthe
airplane. The Government has proffered no authority whereacourt has allowed the Government
to equate the value ofadatabase, records inadatabase, or information therein, SPKCby an
accused or defendant with the value ofthe cost ofcreating and maintaining the database
management system, infrastructure, or sofiware. This isacaseoffirst impression in the volume
of database records, and information therein, alleged to have been SPKCby an accused or
defendant. If the accused downloadedlOrecords fiom one of the databases alleged in thel8
U.S.C.§641specifications,thel0records would also not exist without the database management
infrastructure, system,and software. The Govemment'sproffer for relying on the valueofthe
cost ofcreating and maintaining the database management system, infrastructure, and software to
establish value ofthe databases, records, and information contained therein, relies on the volume
of records allegedly SPKCby the accused. The Court further recognizes that the Government's
amendments to specifications4,6,andl6of Charge 11 after the presentation ofthe evidence to
allege portions ofthe databases and USFIGAL does not afford the Defense the opportunity to
cross examine any ofthe valuation witnesses on the pro rata share of the databases or USFI
GAL or to present evidence regarding the pro rata share ofthe databases or USF-I GAL.
12. The Government may not base the value ofthe database, records, or information therein, for
specifications4, 6,8,12,and16ofCharge II on the value of the cost of creating and maintaining
the database management system, infrastructure, or software. The Court will disregard all
evidence presented of such value when acting as the fact-finder. The Government may present
and argue thieves market evidence regarding the value ofthe database, records, and information
therein, and on cost production evidence presented regarding the cost ofcreating the information
in the charged databases and records, such as employee time and salary for data entry.

35871

13. The Court reaffirms its2July2013ru1ing at AE591(Government Motion to Qualify Mr.
Daniel Lewis as an Expert). The evidence presented by the Government ofvalue in the thieves
market in excess of^lOOO for the records, and information contained therein, for specifications
4,6,8,12,andl6ofChargeIIissomeevidenceofvalueunderRCM917(d)towithstanda
motion forafinding ofnot guilty.
14. The Court'sruling mitigates any prejudice to the accused resulting fiom the Government's
amendments to specifications4,6,andl6of Charge IL The Defense motion foramistrial as to
those specifications is denied.
15. The Court has examined the testimony and evidence identified by the Government in part
B(I-5) ofits brief(AE 599) admitted to prove each of the elements for specifications4,6, 8,12,
andl6of Charge II. The evidence presented by the Govemment, together with all reasonable
inferences and applicable presumptions,viewed in the light most favorable to the Govemment,
without an evaluation ofthe credibility ofthe witnesses, could reasonably tend to establish every
essential element of specifications4,6,8,12,andl6ofCharge II.
Ruling:
1. The Defense Motions foraFindingofNot Guilty for specifications4,6,8,12,andl6of
Chargellis DENIED
2. The Govemment motion to amend specifications4,6,and16of Charge II is GRANTED.
3 The Defense Motionfor Mistrial is DENIED
4. The Government may not base the value ofthe charged databases, records, or information
therein, on the valueof creating or maintaining the database management system,infrastmcture,
or sofiware. The Court will disregard such evidence presented as the fuct-finder. The
Govemment will not refer to such evidence in closing argument.
So Ordered this24th day ofJuly 2013

DENISERLIND
COL,JA
ChiefJudge,1^^ Judicial Circuit

35872

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE MOTION FOR
v. RECONSIDERATION AND FOR

MISTRIAL: SPECIFICATIONS
MANNING, Bradley ECHARGE II
u.s. Army, (18 U.S.C. ?641 OFFENSES)
Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall, DATED: 24 July 2013
Fort Myer, VA 22211

RELIEF SOUGHT

I. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 905(t), requests that this Court reconsider its Supplemental
Ruling on Defense Motions for Findings of Not Guilty dated 24 July 2013 (?RuIing") and
declare a mistrial as to all the 18 U.S.C. Section 641 offenses. The Defense submits that the
Government has made an utter mess of the section 64] offenses by pursuing one charge (that
PFC Manning stole databases) and at the last-minute pursuing a different charge (that PFC
Manning stole infonnation). The Defense did not know that ?database" or ?records? meant
?information? and has suffered irreparable prejudice as a result.

STANDARD

2. Under R.C.M. 9l5, a militaryjudgc may declare a mistrial when ?manifestly necessary in the
interest of justice because of circumstances arising during the proceedings which cast substantial
doubt upon the fairness of the proceedings.?

EVIDENCE

3. The Defense requests that you consider the Attachment (Affidavit from Mr. Cassius Hall).
The Defense also requests that the Court consider the evidence adduced by the Government
during the merits phase of the trial.

ARGUMENT

A. The Defense Did Not Know that Either ?Databases? or ?Records? Included
?Information? until 24 July 2013, After the Close of Evidence




-. 3
eras

35873

4. The Court has ruled that the word ?databases? includes the records and information contained
in the databases, pointing to the definition of ?database? in Black?s Law Dictionary. The Court
states that ?information is necessarily included within the definition of both records or
databases.? See Ruling p. 6. The Court does not provide any authority for this conclusion of law
and the Defense does not believe that this conclusion of law can be reconciled with the Charge
Sheet and the presentation of evidence in this case. Nor can it be reconciled with federal case
law. See Defense R.C.M. 917 Motions.

?Information? is Not Necessarily Included in the De?nition of ?Databases Based
on the Use of The Term ?Databases? In This Case

5. The Court has accepted the Government?s argument that databases records information.
If this were the case, how difficult would it have been for the Government to actually charge
?information? in the Charge Sheet? Why did it use the word ?database?? Why are we in a
position, three years into the case and after the presentation of all the evidence, where we have to
read one word (?information?) into another word (?database? or ?records?)? Why is it that the
Defense is the party that is penalized for an apparent misunderstanding of the charged property?
Why is the Government not held to task for using one word (?database?) when it apparently
meant another (?information?)?

6. If one thing should be clear in a Charge, it is the property that is alleged to have been stolen or
converted. Why is an ambiguity in the Charge placed at the feet of the Defense, rather than the
Government? The fact that the Court needed to look to Black?s Law Dictionary, the parties
submitted approximately 50 pages of motions on the topic, the Court heard multiple oral
arguments on the issue, and the Court took over a week to decide the motion, all suggest that the
issue is not as clear as the Court now makes it seem. If it were apparent to everyone that
database information, why the need for protracted litigation over the issue?

7. Moreover, even though Black?s Law Dictionary de?nes database as it does, there are other
logical understandings of the word ?database.? The Government charged that PFC Manning
stole a database containing number of records. If database records information, then the
charge would have referred to PFC Manning stealing ?a database of number of records.? In
other words, the Government?s charging of database containing number of records suggest
that the database refers to the receptacle for the information or records. Furthermore, although
the Court was apparently not persuaded by this argument, one could easily have an empty
database one that does not contain records or information). For instance, we heard
testimony that the State Department contracted with an outside agency to create the Net-Centric
Diplomacy database. See Mr. Charlie Wisecarver. Presumably, when it contracted with this
outside agency, it was to create the receptacle for the various cables that were added later.
Further, various witnesses testified that the specific databases were ?systems? or ?programs? and
did not indicate that the database was coextensive with its informational content. See Mr. Wyatt
Bora is a reporting and querying system?). The point of this is to illustrate that there
are different, and equally reasonable, understandings of the word ?database.? Simply because
the Court prefersione interpretation over another does not mean that the Defense was on notice of
the interpretation that the Government has now urged the Court to accept and that the Court has
apparently accepted.



35874

8. The Government itself sought to prove that PFC Manning stole ?databases? the
receptacle or infrastructure associated with maintaining the records). Approximately 95% of its
valuation evidence took the form of proving the value of the databases, not the information or the
records. This shows that the Government itself, when it used the word ?databases" in the Charge
Sheet meant databases, not information or records. The Defense, seeing all the evidence that the
Government was adducing on the database, was eminently reasonable in assuming that when the
Government charged ?database? it meant ?database? (the physical receptacle for the
information). 1

9. Even the de?nition accepted by the Court presupposes that a database is more than simply the
information it contains. The de?nition relied on by the Court refers to a database as ?a
compilation of information arranged in a systematic way and offering a means of ?nding speci?c
elements it contains, often today by electronic means.? Ruling at p. 4. Even under this
de?nition, a database contains elements other than information?it includes the organizational
structure (?arranged in a systematic way?) and search capabilities (?offering a means of ?nding
speci?c elements it contains?). These are necessarily included in the concept of database
(indeed, they are what distinguishes a ?database? from ?data?). And now the Court has
concluded that the Government does not need to actually prove what the Government charged-
the entire database, to include elements other than information. This fundamentally changes the
nature of the offense and irreparably prejudices the accused.

ii. Federal Case Law De?nitively Establishes that "Information" is Not Included in
?Records?

10. Federal case law de?nitively establishes that ?information? is not necessarily embraced
within the concept of ?records? within the meaning of section 64] for the following reasons:

a) One federal circuit, the Ninth Circuit, does not accept that information can fall within
section 641. See United States v. Chappell, 270 F.2d 274, 277 (9th Cir. 1959); United
States v. Tobias, 836 F2d 449 Cir. 1988). Accordingly, information cannot ever be a
?record? within the meaning of section 641 under this circuit?s interpretation. Another
federal circuit has expressed reservation over using section 641 to charge information.
See United States v. Truong Dink Hung, 629 F.2d 908 (4?h Cir. 1980). Given these
courts? interpretation of information, it cannot be said that the word ?records? necessarily
encompasses information.

b) Federal courts that have accepted that section 641 applies to information have uniformly
held that information falls within the ?thing of value? prong of section 641, not the
?records? prong of section 64]. See United States v. DiGili0, 538 F.2d 972, 978, fn 10
(3rd 1976) (?The government obviously did not consider this merely a theft of
information case, because the indictment charges defendants only with converting to their
use government records. Section 64] also prohibits conversion of any ?thing of value?,
and the government would presumably rely on this term in an information case?); United

The Defense also believes that the word database can refer to the combination ofthe ?receptaclc" and its records,
but it cannot refer to the records alone. The Defense does not believe that database can fairly be read to include
information for the reasons identi?ed herein, and for the reason that databases do not always contain information
one may have a database of videos, music, photographs, etc.).

3



35875

States v. Jordan, 582 F.3d 1239, 1246 (1 1th Cir. 2009) (indictment under ?64l alleged
that defendant?s ?delivered the printouts which as property of the United States had a
value in excess of $1 000?; in a separate count, indictment alleged that defendant received
?a thing of value of the United States, that is, information contained in the NCIC
recordsf?); United States v. Girard, 601 F.2d 69, 71 (D. Conn. 1979) (?we are impressed
by Congress? repeated use of the phrase ?thing of value? in section 641 and its
predecessors. The word ?thing? notwithstanding, the phrase is generally construed to
cover intangibles as well as tangibles. Although the content of a writing is an
intangible, it is nonetheless a thing ofvalue?). If this is the case?i.e. information and
records are two different things under section 64l?then how can ?information? be fairly
encapsulated within the concept of records?

c) All federal case law where ?information? was alleged to have been stolen actually alleged
in the charge sheet that information was stolen. See e. g. United States v. Jeter, 775 F2d
670, *680-l Cir. 1985) (?The government charged that eter ?did willfully and
knowingly embezzle, steal, purloin and convert others, and
without authority did sell, convey and dispose of records and things of value of the
United States, the value of which is in excess of $100.00, to wit, carbon paper and the
information contained therein relating to matters occurring on October 5, 1983, before a
grand United States v. DtGilio, 538 F.2d 972 (3rd 1976) (government charged
that that the defendants converted to their own use ?records of the United States; that is,
photocopies of official ?les of the Federal Bureau of Investigation?); United States v.
Jordan, 582 F.3d 1239, 1246 (1 1th Cir. 2009) (indictment under ?64l alleged that
defendant?s ?delivered the printouts which as property of the United States had a value in
excess of 1 000?; in a separate count, indictment alleged that defendant received ?a thing
of value of the United States, that is, information contained in the NCIC
Federal case law does not rely on reading into a word like ?database? or ?record? the
concept of information.

The Defense, and the accused, should not be penalized for being aware of federal case law on
section 641. As the Defense argued in its motion to dismiss, every federal case where the theft of
information was alleged actually charged theft of information. The Court failed to reference this
fact in its Ruling, apparently believing that such a factor was unimportant to its disposition.
However, such a factor is critical?since this will be the only prosecution to be maintained based
on theft of ?information? where ?information? was not actually charged. A federal accused
should not fare better than a military accused in terms of the notice provided to him under federal
law a federal accused?s Charge Sheet will state that the accused stole ?information?, while a
military accused must extrapolate ?information? from the word ?database?). If the Government
chooses to incorporate federal law, then federal law in terms of charging and proving the offense,
must be followed.

1 1. The Court also failed to reference the cases cited by the Defense (United States v. Marshall,
No. 08-0779 (C.A.A.F. 2009) and United States v. Veloria, 2011 WL 1330779) that indicate the
importance of the charging decision in terms of what it provides notice of. This is presumably
because these cases involved variances, whereas this Court believes that no variance is required
because the specification put the accused on notice of the charges. However, in those cases, the
difference between the charges and proof was arguably less signi?cant than it is here. Here, the

4



35876

very property at issue is subject to dispute. This is, in the Defense?s view, more critical than
who the accused allegedly escaped from, or who the money technically belonged to. If those
cases concluded that there was a fatal variance between pleadings and proof, so too should have
been the case here. The Government never did establish that PFC Manning stole ?databases?
whether one de?nes databases as the receptacle alone, or the receptacle plus the records in that
receptacle. And now the Court has given the Government a get-out-of-jail free card by allowing
the Government to avoid the necessity of proving the value of the receptacle, even though the
Government itself embarked on a mission to prove the value of the receptacle. In short, not even
the Government knew what it was proving when it charged and pursued the section 641 offense.

B. The Defense Has Been Irreparably Prejudiced by the After-the-Close~of-Evidence
Ruling that Databases Information

12. Based on the Defense?s knowledge of section 641 case law, the Government?s insistence
that it was proving theft of ?databases?, the Government?s proffer in its Instructions that it would
value the ?database?, the Government?s overwhelming evidence as to the cost of the databases,
and Mr. Lewis? repeated assertions to the Defense that he did not know why he was testifying
and could not value information, the Defense defended this case by maintaining that PFC
Manning did not steal or purloin the databases?not that PFC Manning did not steal or purloin
information contained in the databases.

13. Now, after the close of evidence, the Court has grafted onto the Charge Sheet the word
?information? something that the Defense did not know it had to defend against until after it
had cross-examined Government witnesses and after it had called its own witnesses. In short,
the Defense did not know of the case to meet until 24 July 2013, almost two months into the
trial, and the day before closing arguments. The Defense is now left to hope that the
Government has not presented enough evidence to prove a charge that the Defense did not
actually defend against and it does not believe the Government actually charged.

14. If the Defense had known that when the Government charged databases, it really meant
information, the Defense would have defended this case very differently. The inability to do
this, and the after-the-close-of-evidence notification that ?database? apparently equals
?information,? has prejudiced the Defense irreparably.

15. First, the Defense would have challenged by way of motion in the summer of 2012 whether
section 641 could even apply to information (when it brought all its other motions). As it stood
now, the Defense had one day to provide the Court with case law on the issue. After a ruling on
the issue in the summer of 2012, the Defense would have tailored its case accordingly.2

16. Further, and more importantly, if the Defense knew that ?information? is what was alleged
to have been stolen or purloined and that the section 641 offenses would turn in part on whether
the information had a value of more than $1000, the Defense would have requested a
Govemment-appointed expert (much like a computer forensics expert or a security expert) so
that the expert could have testi?ed in the Defense?s case-in?chief. See R.C.M. 703(d). If this

2 The Defense would also have argued that one cannot have a theft of infomiation where the Government has not
lost possession of the original information. From the Court?s Ruling, it appears that the Court has already made this
detemtination based on a footnote in a Fourth Circuit case without the Defense being able to advance this argument.
See Ruling p. 6.

35877

request were denied, the Defense would have sought out an economist or other expert with
knowledge about the value of information to testify and provide a countervailing opinion to Mr.
Lewis.

17. The Defense would also have requested an expert on counter?intelligence to understand the
speci?cs about the arti?cial market that Mr. Lewis testi?ed about. This would have enabled the
Defense to better cross-examine Mr. Lewis on his opinion on the value of the information. In
addition, the Defense would have had this expert testify to the arti?cial nature of the ?spy vs.
spy? market that Mr. Lewis relied upon. Such a witness could have testi?ed regarding how the
amount paid for any item has little to do with the information within the item and more to do
with establishing a relationship with the seller. Additionally, this witness could have testi?ed
that sometimes a government would purchase information for reasons other than to establish a
relationship with the seller. For instance, a government may knowingly purchase information
from a double agent just to see what the United States is willing to sell. This would demonstrate
that the thieves? market relied upon by Mr. Lewis does not reflect an accurate assessment as to
the worth of information itself.

18. Additionally, the Defense would have ?led a motion to preclude Mr. Lewis from testifying
and from being quali?ed as an expert. The Defense would have fully briefed this issue with
reference to relevant case law. The Defense interviewed Mr. Lewis on numerous occasions prior
to the case and Mr. Lewis repeatedly indicated that he did not know why he was testifying, he
did not consider himself an expert on the value of information, and he would not be able to
provide any value for documents. In fact, on the Friday prior to Mr. Lewis testifying on the
Monday, he still held this position. See Af?davit of Mr. Cassius Hall. After apparently being
coached/prepped by the Government, Mr. Lewis? opinion suddenly changed and he now felt
quali?ed to opine as to the value of the information. Mr. Lewis? opinion lacked reliability and
any of the hallmarks of expert testimony. If the Defense had known that this would now be the
evidence on valuation (rather than the mountains of evidence the Government adduced regarding
the cost of creating the database), the Defense certainly would not have proceeded as it did. The
Defense would also have sought the underlying documentation that Mr. Lewis chose not to use
to verify his valuation guess in order to see if it could truly be compared with the charged records
in this case. Given the unreliability of Mr. Lewis? testimony, the Defense still submits that this
Court should have granted the motion to strike his testimony. See United States v. Homing, 409
F.2d 424 Cir. 1969).

C. The Defense Has Been Irreparably Prejudiced By the Court?s Ruling that Even
Though Copies Were Apparently Stolen or Converted, the Government Can Value
the Originals

19. The Court also has apparently accepted the Government?s position that there is no
distinction between original records and copies of records both for identifying what was
allegedly stolen and for placing a value on it. See Ruling, p. 7, 8. The Court, along with the
Government, con?ates two distinct sets of records (the original records and the digital records) in
order to potentially make out a 641 offense. The Court states:

The Government is charging the accused with stealing and purloining the
databases, electronic records, and information therein, at issue by accessing the
relevant database, extracting the records from the database management system

6

35878

structure, placing the information on private platforms or digital media while in
the 2nd Brigade Sensitive Compartmented Infonnation Facility (SCIF) at Forward
Operating Base (FOB) Hammer, and aspoiting the downloaded records, and
information contained therein, to the accused?s personal platforms or digital
media outside the SCIF in his housing unit.

See Ruling, p. 7. Here, the Court fails to distinguish between the original records (?extracting
the records from the database management system?) and the copies of the records (?asporting the
downloaded records to the accused?s personal platforms?). Further confusing the issue is the
Court?s next sentence: ?The Government?s theory is that the accused knowingly converted the
records sending them to WikiLeaks.? Id. at p. 7-8. Clearly, here there is no question that the
records that PFC Manning sent to WikiLeaks were copies of records that he maintained on CD.
However, the Court is allowing the Government to argue and introduce value of the production
of originals when what the Government is saying is that PFC Manning converted the copies.

20. The Court believes that of electronic data doesn?t compare neatly to cases where the
defendant made photocopies of government records, replaced the originals, and SPKC the
photocopies. With SPKC, there are no copies to steal until the accused accesses the digital
information and makes the extraction. The original digital database and records remain in the
database management system during and after extraction.? Id. at p. 7. The Defense sees no
distinction between physical copying (in the form of photocopying or taking a picture) and
digital copying. And there is no authority anywhere in the section 641 case law for allowing the
cost of production of original records to be valued when what is stolen or converted are the
copies. See e.g. United States v. DiGiIio, 538 F.2d 972, 977 (3rd Cir. l976)(court held that the ?a
duplicate copy is a record for purposes of the statute, and duplicate copies belonging to the
government were stolen.? In terms of valuing this duplicate copy, the court held: ?Irene
Klimansky availed herself of several government resources in copying DiGilio?s ?les, namely,
government time, government equipment and government supplies?); United States v. Hubbard,
474 F. Supp. 64 (D.C.D.C. 1979) (court allowed prosecution to proceed on theory that ?the
copies, allegedly made from government documents, by means of government resources, are
records of the government, and thus the copies were stolen?).

21. The Court draws a distinction between cases ?where the defendant made photocopies of
government records, replaced the originals, and SPKC the photocopies. With SPKC, there are
no copies to steal until the accused accesses the digital information and makes the extraction.
The original digital database and records remain in the database management system during and
after extraction.? Id. The Defense does not understand this apparent distinguishing basis. How
is this any different, for instance, than seeing a classi?ed memo on a desk and taking a picture of
it (without moving it) and then sending the picture of it to someone not authorized to receive it?
There is no suppoit for treating copying of digital information any differently than copying of
physical information and the Government has provided none. The Defense, based on a good-
faith reading of section 641 case law, was not on notice that it would have to defend against the
value of stolen originals when it is clear that what was potentially stolen were copies.

22. This is exactly the son of mix-and-match theory of valuation that the Defense cautioned
against in its Motion to Dismiss and that the Defense believes is not permitted by the section 641



35879

case law. The Court?s ruling, after the close of evidence, that the Government can introduce
value of the original copies even if copies were stolen (because ?electronic data doesn?t compare
neatly to cases [involving tangible data]?) has irreparably prejudiced the Defense.

23. The Defense allowed the Government, in its Stipulations of Expected Testimony, to bring in
testimony related to the cost of production of original records. Since, based on a good?faith (and
the Defense submits, correct) reading of the section 641 case law, this evidence would be
irrelevant where the accused stole a copy of a record, the Defense did not object to its
introduction or cross-examine on it. If the Defense had known that the Court would permit the
Government to allege that PFC Manning stole copies (without actually even having to amend the
charge sheet), but prove the value of creating the originals, the Defense would have vigorously
cross?examined all the Government?s witnesses on this. The Defense would never have entered
into several of the Stipulations of Expected Testimony if it were at all apparent that the
Government would be allowed to value original records, rather than databases.

D. The Defense Is Not At Fault For Failing to Request Further Speci?city

24. The Court appears to fault the Defense for not requesting additional specificity in the Bill of
Particulars on the res alleged to have been stolen. See Ruling (?In the bill of particulars, the
Defense posed questions with regard to the Government?s theory of prosecution. The Defense
did not seek more speci?city as to the items charged. Nor did the Defense seek clari?cation after
receiving the Government?s response?). The Court ignores the fact that there was no need to
request ?further clarification? given that the Government stated that it was ?clear? what property
was alleged to have been stolen or converted?speci?c, identi?able databases (CIDNE, NCD
and SOUTHCOM). The Court indicated at the time that the details provided by the Government
provided sufficient notice of the charges against the accused. The Defense was not obligated to
further ask the Government, ?Are you sure you don?t mean information? It looks like you
probably meant information, so maybe you should change the charge sheet before referral.?

25. This entire case proceeded on the theory that PFC Manning stole or converted the
?databases??that is why the Government adduced, and was permitted to adduce, evidence of the
creation of a database. The Government?s actions in seeking out witnesses and presenting a
large volume of evidence related to the creation of the database makes it clear what the
Government really sought to prove: that PFC Manning stole databases. It is ironic that the
Defense was supposed to read into the word ?database? the concept of information, all while the
Government was doing its best to present every bit of available evidence valuing the actual
CIDNE, NCD and SOUTHCOM databases (excluding the value of the information).

E. The Defense is Still Not Clear on What PFC Manning is Alleged to Have Stolen and
How that Can be Valued

26. The Defense believes, based on the Court?s Ruling, that the Government no longer has to
prove that PFC Manning stole ?databases? in the sense of the actual CIDNE, NCD, or
SOUTHCOM databases the receptacle for records). However, the Government has already
admitted a mountain of evidence on the actual value of these databases. Apparently, even
though the Government did not know it, all that evidence was entirely irrelevant to proper



valuation to what the Government should have charged (copies of records or information). 3 So
now the Defense is supposed to read ?database? as really signifying ?records? or ?information.

27. The Defense submits that PFC Manning did not steal or convert original records; and to the
extent that he stole or converted anything, it was a copy of those records. The Court has
accepted the Government?s view, completely unsupported by authority, that there is no
difference between the two. So apparently, the Government is permitted to argue that PFC
Manning stole copies by giving records to WikiLeaks, but gets to value the original records. The
Defense is not sure what exact method of valuation the Government will rely on and has not had
an opportunity to cross-examine on this issue or request clarification at a meaningful juncture of
these proceedings. The Defense submits that the cost of production of records is the time it takes
for someone to enter the records onto a database. The Government has not introduced any
evidence of this, so the Defense assumes that the Government will argue that the cost of
harnessing and assimilating the information that eventually goes into the record is appropriate for
cost of production. So, for instance, if it took 3 years to compile a detainee assessment brief,
then 3 years of JAG time, commander time, etc. would establish the cost of production (such that
the one detainee assessment brief might be worth $500,000). The Defense submits that this is
not a permissible valuation method for a record. But the key point is that the Defense has not
had any opportunity to contest this method of valuation--because the case is already over and
the Defense did not know until today that the Court would permit valuation of an original record
when what was allegedly stolen was a copy or information. The Government may alternatively
try arguing a ?cost of production" for information. No court, to the Defense?s knowledge, has
allowed such a valuation theory to proceed. The point is that at this late date, the Defense is still
not clear on what valuation methods are permitted and for what property. But even if it were,
there is nothing the Defense can do about this, since the parties are on the eve of closing

arguments.

F. The Amendments That Allege PortionDatabase is a Major
Amendment and Has Caused Unfair Prejudice

28. The Court believes that changing Speci?cation 16 of Charge 11 to read that PFC Manning
stole or converted ?a portionmajor amendment. The Defense disagrees and
believes that this is a major amendment that seriously prejudices the accused and warrants relief
under R.C.M. 915.

29. The Defense did not focus its questioning on establishing whether the military addresses
found on PFC Manning?s computer constituted a subset of the USF-I it focused its
questioning on whether the addresses constituted the USF-I GAL. If the Defense had known that
the charge would shift from being ?the USF-I to ?a portion of the USF-I the
Defense would have questioned Government witnesses on whether the email addresses found on
his computer comprised a ?a portion? of the USF-I GAL and the basis for that opinion. The
Defense would not have simply let what would appear to be irrelevant statements go unchecked
if it now knew it was now defending against PFC Manning stealing ?a portion? of the USF-I

3 The fact that the Government itself was incredibly confused on what it was valuing (the database, to include it
supporting infrastructure) suggests that the Defense?s belief as to the identity of the allegedly stolen property was
entirely reasonable.

35881

GAL it would have cross-examined Chief Nixon fI.1I'thBl' on his statements regarding his
opinion that this might be the Division GAL).

30. Further, the Defense would also have focused its questions regarding valuation on the value
of a subset of the USF-I GAL, not on the value of the USF-I GAL as a whole. The Defense
would have also objected to the Government eliciting testimony about the value of the USF-I
GAL as a whole ifthe Government was merely proving that PFC Manning took ?a portion? of
the USF-I GAL.

31. Similarly, the amendment that PFC Manning stole a ?portion? of a database is a major
amendment because it impeded the ability of the Defense to cross?examine on the value of a
?portion? of the database. The Defense would have interviewed witnesses and ascertained for
itself what the cost of production of these records would be. The Defense would not be left
simply hoping that the Government has not met its burden of proof.

CONCLUSION

32. It is clear from federal case law that ?records? and ?information" are different things. The
Court?s conflating of ?database? and ?records? and ?information,? after the close of evidence, is
not a fair or accurate reading of the law and unfairly prejudices the accused in this case.

33. The Government has pushed this case beyond the bounds of legal propriety. If the
Government meant ?information?, it should have charged information. We should not have to
rely on Black?s Law Dictionary to get us there. If the Defense knew that the property allegedly
stolen was ?information? it would have proceeded in an entirely different fashion. This is true as
well if the Defense knew that the Court would allow the Government to value original records
when no original records were stolen or converted.

34. Because all of these critical ?clarifications? are coming after eight weeks of testimony, and
because these offenses carry with them 50 years of potential imprisonment, and because the
Defense was actually misled by the Charge Sheet, the Defense requests that this Court declare a
mistrial as to the section 641 offenses. The accused is still facing the prospect of life in prison
(due to what the Defense submits is an unprecedented Article 104 charge). There is no need to
mar the appellate record in such a way that it clear that a substantial doubt is cast upon the
fairness of these proceedings.

Respectfully submittedDAVID EDWARD COOMBS
Civilian Defense Counsel

10

35882

I am a detailed Security Expert for the defense in the case of US v. PFC Bradley Manning. I understood
that 1, or my fellow expert Charles Ganiel, was required to be present at any witness interviews in which
classified information would be discussed. In discharging those duties, I recall being present for at least
five witness interviews with Mr. Danny Lewis.
I cannot recall the exact date of the first meeting, but I believe that it was in either late 2012 or early
2013. The meeting took pt9ce in the office Mr. Lewfis occupied at the time in Qugntico, Virginig. The
following people were present at that meeting: Mr, Lewis, MAJ Thomas Hurley, someone from DIA, and
myself. After introductions, I can recall Mr. Lewis saying that he has oversight generally into what
information the enemy is looking for given his access to the ongoing counterintelligence operations. Mr.
Lewis indicated that there was no way to determine the actual value of classified documents. Mr. Lewis
indicated that he was not an expert in determining value of classified information. Mr. Lewis could only
use the past or existing missions as a guide to make any decisions. Mr. Lewis also indicated that he was
unclear what he was going to be testifying about at this trial.
The second meeting with Mr. Lewis occurred in May of 2013. That interview occurred in a conference
room at my workplace at INSCOM. The following people were present at that meeting; Mr. Lewis, MAJ
Hurley, and myself. From this interview, I recall Mr. Lewis indicating that there was no way of actually
determining the value of classified documents. Mr. Lewis then indicated to MAJ Hurley and myself that
the only things he could talk about would be what US government information adversaries would be
interested in and what they would do with it. By that time, Mr. Lewis did understand what he was going
to testify about, but only in general and vague terms. Mr. Lewis did not know of any training or
educational classes that could train you to value classified information. Mr. Lewis asked me if I had ever
heard of anything like that, and I told him I had not. Mr. Lewis told us that all we could use was
historical information from similar incidents that occurred in the past. Mr. Lewis told us again that he
did not consider himself an expert at valuing classified information. Mr. Lewis told us then that he had
not reviewed any of the evidence in this case. Mr. Lewis also indicated that he could not remember
anything specifically about the historical data that had been captured.
The third meeting occurred in June of 2013 in the days leading up to the testimony of Mr. Lewis. I recall
this meeting taking place the Thursday prior to the testimony of Mr. Lewis in the defense trailer near the
courtroom here on Fort Meade. The following people were present at that meeting: Mr. Lewis, MAJ
Hurley, and myself. I recall Mr. Lewis saying that he was going to testify about the contents ofthe
charged documents in this case. He also indicated that he did not then consider himself an expert at
valuing classified information and that he had never considered himself an expert at it. This was the first
time Mr. Lewis showed us the documents that he had pulled from his colleagues at DIA. He also
indicated that he did not know how he was going to testify about the value of classified documents
when he only had the contents of those documents to use in making any determination.
The fourth meeting occurred in June of 2013 in the days leading up to the testimony of Mr. Lewis. I
recall this meeting taking place on a Friday in the witness trailer at the courtroom on Fort Meade. The
following people were present at that meeting: Mr. Lewis, MAJ Hurley, and myself. Mr. Lewis was asked
again about the nature of his testimony, and Mr. Lewis talked about the data he pulled from his

35883

colleagues at DIA. In this meeting, Mr.Lewis again indicated that he was not an expert. IrecallMAJ
Hurley asking him how he could make any valuation determination, and he could only reference the
documentspulledfrom DIA MrLewisindicatedthathewasnot part ofanyvaluingdeterminationsin
his official duties. Finally,he talked about failed operations and how they were or were not used in
determining the value of classified documents.
The fifth meeting occurred inJune of 2013 in the days leading up to the testimony ofMr.Lewis. Irecall
this meeting taking place onaMonday.The following people v.^ere present at that r^^eeting: Mr.Lewis,
MAJ Hurley,and myself. MAJ Hurley asked Mr.Lewis again about the value of documents. Mr.Lewis
talked about the documents he pulled from DIA and how they were compiled for his testimony. Mr.
Lewis also talked about his then discontinued access to the information from DIA because his role with
that organisation had changed
Ihave talked to Mr.Ganiel He indicated to me that he was never present for any otherwitness
interviews with Mr.Lewis.

35884

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

Accounting of Expert
Witnesses for
Presentencing
25 July 2013

This filing supplements Appellate Exhibit (AE) 543, the Government's Accounting of
Discovery and Expert Witnesses dated 15 May 2013, wherein the United States notified the
defense and the Court which witnesses it may qualify as experts, and in what field, during the
merits and/or presentencing phase of trial. The United States still may qualify those witnesses
who will testify during the presentencing phase of trial as experts in their respective fields. In
addition, the United States may qualify the following witnesses as experts in the below fields:
a. RADM Kevin M. Donegan. The United States may qualify this witness as an expert
in United States Central Command (USCENTCOM) operations from 2010 to 2012;
b. Mr. John Kirchhofer. The United States may qualify this witness as an expert in
strategic planning for Department ofDefense counterintelligence (CI) and human intelligence
(HUMINT), to include strategy, policy development, and functional management;
c. MajGen Frank McKenzie. The United States may qualify this witness as an expert in
USCENTCOM strategic planning from 2010 to 2012; and
d. Mr. Adam Pearson. The United States may qualify this witness as an expert in
terrorist activities on the Intemet.
Since 15 March 2013, the defense has been on notice of the subject matter of the
expected testimony for the above four witnesses. See AE 505. Based on the scope of their
expected testimony, the United States has disclosed, or made available to the defense for
inspection, those specific facts or data that could reasonably be identified as underlying the
opinions of the above witnesses lAW MRE 705. Should the United States leam of additional
specific facts or data underlying their opinions during the course of trial preparation, the United
States will disclose that material and account for any such disclosure.
The above list does not account for any witnesses the United States may qualify as
experts in rebuttal.

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel
APPELLATE EXHIBIT LK"
PAGE REFERENCED: " " ^ ^
PAGE
OF
PAGES

35885

Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr.David Coombs,
Civilian Delense Counsel, via electronic mail on 25 July 2013.

LHUNTER WHYTE
CPT,JA
AssistantTrial Counsel

35886

UNITED STATESGF AMERICA
v^
Manning, Bradley E.
PFCUSArmy,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

Schedule of Government Witnesses
for Presentencing Phase
25July20I3

The United States submits the below order for the twenty presentencing witnesses the
United States intends to cafl in the above captioned court-martial,along with the dates oftheir
testimony. Witnesses^1-15have coordinated their schedules to be available on the below dates
and at the specified time. Witnesses^l6 20wiflbeonsite,starting5August2013,andwiflbe
standing-by,ready to testify,when time permits. Witnesses identified withacaret("^") are
witnesses the United States intends to qualify as expert witnesses. Witnesses identified with an
asterisked") are witnesses for which the United States intends to elicit classified testimony ina
closed session fbraporiion of their testimony.
Wednesday, 31 July 2013
1. AM - BG (R) Robert Carr^
2. PM- Mr. John Kirchhofer^*

Wednesday, 7 August 2013
10. AM - Mr. James McCarr*
11. PM - Mr. Adam Pearson^

Thursday, 1 August 2013
3. A M - PDAS Elizabeth Dibble^*
4. PM - PDAS John Feeley^*

Thursday, 8 August 2013
12. AM - Mr. Randall MacRobbie^*
13. PM-CDRYoussefAboul-Enein^*

Friday, 2 August 2013
5. AM - Ms. Susan Swarf^
6. PM - AMB Michael Kozak^

Friday, 9 August 2013
14. AM - RADM Kevin Donegan^*
15. PM - MajGen Kenneth McKenzie^*

Monday, 5 August 2013
7. AM/PM - AMB Patrick F. Kennedy""

Witnesses Standing-By
16. COL David Miller
17. Ms. Jihrleah Showman
18. CPT Steven Lim
19. SA David Shaver
20. SA Mark Mander

Tuesday, 6 August 2013
8. AM - MG Michael Nagata""*
9. PM - Col Julian Chesnutt*

J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel

APPELLATE EXHIBIT
PAGE REFERENCED:
PAGE
OF
PAGES

35887

Icertifythatlserved or caused to be servedatrue copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 25 July 2013.

J^LfUl^ER WHYTE
CPT,JA
AssistantTrial Counsel

35888

Appellate Exhibit 617
4 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

35889

f 1:58:31 PM) bradass87: if vou had
unprecedented access to classified networks
14 hours a day 7 days a week for 8+ months,
what would you do?
( 1 2 : 1 5 : 1 1 PM) bradass87: hypothetical
question: if you had free reign over classified
networks for long periods of time... say, 8-9
months... and you saw incredible things, awful
things... things that belonged in the public
domain, and not on some server stored in a
dark room in Washington DC... what would you
do?

(12:33:05
(12:35:17
(12:39:12
(12:41:54

PM)
PM)
PM)
PM)

bradass87:
bradass87:
bradass87:
bradass87:

In other words... Ive made a huge mess :'(
Im sorry... Im just emotionally fractured
Im a total mess
I think Im In more potential heat than you ever

(12:41:54 PM) info9adrlanlamo.com : 1 have more
messages than resources allocatable to action them. Please be very patient.
(12:45:59 PM) lnfo@mdrtanlamo.com: not mandatorily
(12:46:08 PM) infoOatlrianlamo.com: there are always outs
(12:46:17 PM) lnfo@adrtanlamo.com: how long have you helped
Wllclleaks?
(12:49:09 PM) bradass87: since they released the 9/11 "pager messages"
(12:49:38 PM) bradass87: 1 Immediately recognized that thev were from an
IjSA database, and I felt comfortable enough to come forward
(12:50:20 PM) bradaa#87: so right after thanksgiving timeframe of 2009
(12:52:33 PM) bradaas87: Hilary Clinton, and several thousand diplomats
around the world are going to have a heart attack when they wake up one
morning, and finds an entire repository of classified foreign policy is available,
in searchable format to thg public... =L
(12:53:41 PM) bradass87: s/Hllary/Hill ary
(12:54:47 PM) lnfoOadrtanlamo.com: What sort of content?
(12:56:36 PM) lnfoOadrianlamo.com: brb cigarette
(12:56:43 PH) lnfoOadrianlamo.com: keep typing <3

(12:59:41 PM) bradaKs67: uhm... crazy, almost criminal political backdealinqs...
the non-PR-versions of world events and crises... uhm... all kinds of stuff like
everything from the buildup to the Iraq war during Powell, to what the actual
content of "aid packages" Is: for instance, PR that the US is sending aid to pakistan
includes funding for water/food/clothing... that much Is true, it includes that, but the
other 85% of it Is for F-16 fighters and munitions to aid in the Afghanistan effort, so
the US can call In Pakistanis to do aerial bombing instead of americans potentially
killing civilians and creating a PR crisis
(1:00:57 PM) bradassS7: theres so much... it affects everybody on
earth... everywhere there's a US post... there's a diplomatic scandal that will be
revealed... Iceland, the Vatican, Spain, Brazil, Madascar, If its a country, and its
recognized by the US as a country. Its got dirt on it
(1:01:27 PM) bradassS7: i need one myself
(1:10:38 PM) bradass87: Its open diplomacy... world-wide anarchy in CSV
format,., its Ciimategate with a global scope, and breathtaking depth.,. its beautiful,
and horrifying..,
(1:10:38 PM) infoOadrianlamo.com : I have more messages
than resources allocatable to action them. Please be very patient.
(1:11:54 PM) bradass87: and... its important that it gets out... i feel, for some
bizarre reason
(1:12:02 PM) bradass87: it might actually change something
(1:13:10 PM) bradass87: i Just... dont wish to be a part of it... at least not now
im not ready... i wouldn't mind going to prison for the rest of my life, or being
executed so much, if it wasn't for the possibility of having pictures of me... plastered
all over the worid press., as boy...
(1:14:11 PM) bradass87:1've totally lost my mind... i make no sense... the CPU is
not made for this motherboard...
(1:14:42 PM) bradass87: s/as boy/as a boy

APPELLATE EXHIBIT
PAGE REFERENCEDPAGE
OF
PAGES

35890

( 0 2 : 5 0 : 4 4 PM) bradass87: (17) 51PDI5"formessggestntendedforautomaticWebpubllshingtothG originating
post's or office's Web site, (see 5 FAM 770 for policies regarding
information on Federal Web site and 5 FAH-2 H-443,1, When and
How to Use SIPDIS);
(02:51:58PM)Bradas$87: http://www.state.gov/documents/organl
zation/89284.pdf
(02:52:03 PM) bradass87: [reference]
(02:52:47 PM) bradass87: state dept fucked itself... placed
volumes and volumes of information in a single spot, with no security
( 0 2 : 5 3 : 2 8 PM) lnfo@adrianlamo.com: only the people you trust
can fuck you - infowise ;>
(02:54:03 PM) bradass87: so anything published, and classified
up to SECRET//NOFORN

TIMKI.INE
ASOdiiEllB
1> liaiiMOAC lStTook 8 Jan lO.CJavc&omSDCatdioWX oil J Feb 10. WL publistwtiJ
1) ArRhnmstanSIOACTS iTookS Jan 10. Oavefrotu SDCardlo WL on .» Frb 10;
publifhn 25 Jul 10)
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61 OTMO Documrats(Took " \ i v lO.Oav* l o U X oiiS .Mai 10. %X p u b t i s h « 2 l Apr 111
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S l Diplomatic C abin (Took 10 Apt 10. Gave TO WL on 10 A p i 10;%% i t a m lo publish!* Nov
10uidpuMi*hnaUume9 ) FtttahVidn}andFmihl*-6Invntq^iionlt\\ niigaiioB. Ga\e to WX m Apr 10. %X o r v n p u b l i t b n
lot OutlookSharPoiat ExchangeSfivei Global AddiMSM (ciratrd 11 May. Smer Gave to

Defense Exhibit R

The Truth

Testimony of Ms. McNamara
• " I can apply what I learn to provide
more information to my officers anij
comman(jers, and hopefully save lives..."
• "I'm more concerned about making sure
that everyone, soldiers, marines,
contractors, even the local nationals, get
home to their families."

35891

Defense Exhibit R
• " I feel a great responsibility and duty to
people ... it's strange, I know."

Defense Exhibit R
• "I've got foreign affairs on my mind
constantly now ... One of the bad parts
of the job, having to think about bad
stuff."

• " I place value on people first."
• "Sometimes I wish it were all black and
white like the media and politicians
present it... him, he's a the bad guy, oh
and he, he's the good guy... it's all
shades of blurry grey."

AdFian Lamo

Adrian Lamo/PE 30
Testified that PFC Manning believed:

• Believed PFC Manning was:
• Young
• Idealistic
• Well-intentioned

• Information would have an impact
on the entire world
• Information would disclose casualty
figures in Iraq
• Diplomatic cables explained how we
exploited others

35892

Adrian Lamo^RE 30

Adrian Laino^RE 30

Testified that ^FC Manning believed:

Testified that I^FC Manning told him:

^ It was important that the
information got out

D That he cared about others

^ Fie could not separate himself from
others
^ Fie was connected to everybody
^ We were all distant family

Adrian i^amo^RE 30

^ That he wanted to make sure that
everyone was okay
^ That he separated himself from
other analysts because he did care
about people

Adrian i^an^o^PE 30

Testified that I^FC Manning told him:

Testified that I^FC Manning told him:

^ Fie followed humanist values

^ Fie was hoping to spark worldwide
discussion, debates, and reforms

^ Fie wore custom 10 tags that said
"Flumanist"

^ Fie wanted people to see the truth

^ Fie was troubled that no one seemed
to care

D Fie was hoping people would change
based upon having the information

35893

Significant Events
• Christmas Eve EFP SIGACT: Defense
Exhibit E - CW2 Ehresman
• Arrest of 15 Iraqis for printing literature
critical of Iraqi government: PE 123 and
SGT Sadtler
• Apache Video: PE 30
• Farah Video: PE 30
• Day to Day Activities

35894

Government Version
Government Version

• PFC Manning Deploys in November
of 2009
• Within two weeks, PFC Manning is
working for Wikileaks
• MOTIVE?

Government's Rroof
2009 Wikileaks Most Wanted List
Jason Katz's Computer
Adrian Lamo Chat
USF-I GAL
Wiping Computer
Showman's allegations

2009 M\N List
• Tried to make it seem like a evil
list by giving the sort version only
• List of events that reporters,
humanitarians, activists, and NGOs
want to know
• Could only remotely tie PFC
Manning to 4 of the 78 things for
U.S. and the same 4 for the
several hundred on the list

35895

Jason Katz's Computer
• No tie between PFC Manning and
Jason Katz
• Jason Katz has Farah video on
computer 15 December 2009
• Forensics from 1 December 2009
forward show PFC Manning never
accessed the CENTCOM Farah
video

Jason Katz's Computer
• Encrypted Farah video that WL did
not ask for in 2009 MW List
• Waited five months to send the
supporting Farah documentation:
15-6 and PPT slides that were at
the same location
• Pulled all of that information but
the encrypted Farah video in April
of 2010

Jason Katz's Computer
• To give to Jason Katz and WL, PFC
Manning must have taken the
Farah video in November
• Centaur Logs - Net Flow
• Intellink Logs - 30 November
search for "CENTCOM"

Jason Katz' Computer
• SA Shaver - evidence PFC Manning
pulled a video from the T-Drive in
a folder labeled Farah (TGTl.wmv)
• Government never disputed that
an unencrypted Farah video was
available on the T-Drive

35896

Jason Katz

WL 8 Jan 2010 Tweet
• Tweet that WL had an encrypted
video that they needed super
computer assistance on.
• How did WL get the encrypted
video?

JASON KATZ

Adrian Lamo Chat/PE 30
F'WUDri
i^_;fe';:;'-Uvftt
t2 16 22.PMJ &raclJ5i.87

Source of video for Wikileaks
- M r . Katz was using a program that
allowed him to transfer files between
his computer and to another computer
not his home computer - Mr. Withers
- M r . Katz had a password cracking
software on his computer - Mr.
Withers
- M r . Katz had access to BNL's super
computer system - Mr. Fung

Adrian Lamo Chat/PE 30
• Gov claims PFC admitted to giving
the encrypted video

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'lilMrani a r ? l l k e

••n-jr.ti;ivfirr

Uv'l.^S.PJWlfe'JL**>??--*.--:.,'-i'-'''?i„.'„:l..;..
lZ..l%12PMlb[*d,a&t87L.'

• T-Drive (TGTl.wmv) on two
locations

•^r..:Ll'.::l'^:i^-t

35897

i^arah Video
PFC Manning was the most
organized analyst he had ever
seen in his 20 years CW4 Flack
Fie had "several directories and
subdirectories" his files were "very
neatly organized" CW4 Flack
Shaver video pulled f r o m a
folder labeled "Farah" and placed
on PFC Manning's computer at two
locations labeled "Farah"

Li^E^GAL
DWLTweetrequested.mil addresses
not Iraq e-mail addresses
DForensicsforeverything-butno
forensics for sending the Division
GAL to anyone
^Common sense explanation for why
PFC Manning would want to see if he
could download the Division GAL

^arah Video
^ W h y d o e s t h e Government reject
the idea that PFC Manning gave
the Farah video along with the
other Farah documents in April
2010?
It doesn't fit its fictional story

TheLi^E^GAL
Why does the Government want to
argue PFC Manning ^^stole,
purloined, or knowingly converted"
the USFIGAL?
It fits its fictional story

35898

Wiping Computer

Wiping Computer

D I f y o u were covering your tracks,
wouldn't you wipe your computer in
February?(Cable^ Apache video)

^Pass Wiping is minimum
amount to wipe c o m p u t e r - M r .
Johnson

DMarch? (ACIC^DAOs^OGA)

Wipingacomputerduetobeingin
an environment like Iraq
- 0 ^ ^ 5 - ^ computers needed to he
wiped onafre^uenthasis
-l^einstalling operating system and
clearing unallocated space is normal

DApril? (NCD^ Farah Video and Files)
DMay?(No longer i n T S C I F )

Wiping Computer
DWhy is the Government trying to
makeabigdealoutofPFC
Manning's decision to reinstall his
operating system on 25 January
2010 and clear his unallocated
spaceon31January2010?
It fits its fictional story

showman's Aiie^ations
Ms.Showman
-l^ever reduced to written counseling
-Old not mention when first
interviewed hy^^O after arrest
-incredible story regarding reporting
to then M5^ adkins (possible spy)
Motive to fabricate (punchy
complaints statements in movies
Twitter account)

10

35899

Showman's Allegations
Mr. Adkins
-Does not remember/recall Ms.
Showman telling him anything
- Never wrote about alleged
statements in his MFRs
-Did not mention in any of his
interviews by CID or for 15-6
- I n GOMAR Rebuttal stated PFC
Manning never made disloyal
comments
-Admin Reduction Board Statement

Good Soldier/Hacker
• Is he the "go to analyst" or not?
• Spending time "systematically
harvesting" information or is he
getting his work done on time?
• Constantly searching for WL or is
he the most organized analyst in
the S2 Section?

Arrogance v. Anonymity
• Seeking Fame?
-"He wanted to guarantee his fame."
-"He wanted attention from the press."
-"He sought publicity."
-"Collected trophies."
• Wanted Anonymity?
-"Obsessed with covering his tracks."
-"Wanted them to protect the source."
-"He tried to erase any evidence of
what he did."

Worst Employee of All
Time
At MOST, only searched for 4 of
the 78 items on 2009 MW List (his
so-called "guiding light").
Unlimited access and unlimited
ability to download and save but
only sends limited items

11

35900

Government Version
a s t o r y does not make sense
a s t o r y is not consistent with the
facts or even internally consistent

Charges

D M O T I V E - W h a t case did the
Government participate in?

Charges
DPFC Manning was young and naive,
but he wasn't wrong
DLook at the evidence and compare
with the statements
DNo one wants to question the OCA
-TTPs, troop movements, close air
support, weapons systems, unit
identifiers, DUSTWUN procedures

Apache Video
Specification2of Charge I I
Not closely held or classified
-Ouoted verbatim in Finkel^s"The
Good Soldiers"
-C5NTC0M FOIA Response
-R5 15 CD in CHO labeled Reuters
FOIARe(^uest
-edited for Reuters(copy for Reuters)
Could NOTcause damage only
embarrassment - D ^ O

1^

35901

Earah Video
Specification 11 ofCharge II
- N o connection between Manning and
Mr.Katz
Mr.Katz's video matched CENTCOM
- M r . K a t z is the source
- N o forensics before April ^010 dealing
with Farah
-Fantastical version offered by the
Government
Shaver^s common sense version

^030 and Article ^2
^Specification 13 of Charge II and
Specifications2and3of Charge III
- W g e t was not prevented from running
and soldiers allowed to add executable
files to computer
- ^ v e n i f i t w a s unauthorized software
does not egual an access restriction
- N o such thing as an implicit access
restriction
-NoAOP

Earah Documents
Specification 10 ofCharge II
-Documentedalarge-scale civilian
casualties(CIVCAS^ incident that
received worldwide attention-I^CDR
Hoskins
- D i d not consider open source
material, unclassified publications
(ARs and FMs)-LCDR Hoskins
-Look at the basis provided by the
Government's witnesses-Mr.
Travieso

^030 and Article ^2
NoPules:TheUnit
No restrictions on downloading COL
Miller
- N o restrictions on downloading from NCD
-CPTLim
- N o training on any so-called download
restrictions and PFC Manning did not need
to hack or circumvent anything to gain
access to NCD-CPT Cherepko
- N o restriction on using an executable files
from CD or desktop or to download from
SIPRN5T-CW^5hresman

1^

35902

^030 and Article ^2
Nol^ules: N C D - M r . Wisecarver
- N o restrictions on manner of
downloading
- N o restrictions on access other than
access to SIPRNet
-DOS relied upon receiving agencies for
any restrictions
-Purpose was to share cables
-Multiple screens can be opened for
printing and saving

1030 and Article 92
No T-SCIF SOP - CPT Lim
-Unclear what was as was not permitted
in T-SCIF ("knowingly") - CPT Keay
• COL Miller/SPC Showman - (Movies and
Music good
• CPT Lim - Movies bad, Music good
• CPT Cherepko - Movies and Music bad
• CW2 Balonek - Did not know if Movies and
Music were bad or not
• SGT Madaras - Movies and Music were
allowed
• Mr. Milliman - NO Music, Movies or Games

^030 and Article ^2
SA S h a v e r
- W g e t did not provide greater access
Wget simply automated the click^open
save process
- W g e t accessed each cable individually
- W g e t is notanefarious p r o g r a m - i t is
^ustasimple command line program

1030 and Article 92
• AR 2 5 - 2
- Book Answer/Real World Answer - Mr.
Weaver
-Things were different when deployed
as opposed to in garrison - CW2
Balonek
• m I R C Chat
- N o t authorized as baseline - Mr. Kitz
- C D R m u s t request - Mr. Kitz
- A u t h o r i z e d on DCGS-A - Mr. Milliman

14

35903

1030 and Article 92

Article 92

Executable Files and Games
-CPT Chrepeko-5^ecutat^le files are same as
g a m e s - n o t allowed. Noauthori^edTOrive
folder for music, movies, games, e^ecutat^les
CW2 ehresman ^ ^ e c u t a b l e Files and Games
allowed
-SPCShowman Games allowed and PFC
Manning placed m^l^C Chat on her computer
-SGT Madaras^PFC Manning worked on
computers, placed m^l^C Chat on his
computer,silence on the issue of what was
and was not allowed
-CPT Fulton-m^^C Chat placed as an
executable file on her computer

^^IC^ffenses
S p e c i f i c a t i o n s 4 , ^ , ^ , 12, and l ^ o f
Charge I I and Specification4of
Charge I I I
-Government failed to prove BRD PFC
Manning stole, purloined, or converted
the charged databases
Government failed to prove PFC
Manning used an information system
in violation of AR 25 2

Specification l o f Charge I I I ( n o t to
cover tracks)
NoTSCIFSOP-CPTLim
^Breaking P a s s w o r d s - M r . M i l l i m a n
^Asked to Break P a s s w o r d s - S P C
Showman

AP252
- B o o k Answer^Real World A n s w e r
Weaver

Mr.

^^ICffenses
Value of Original Records
- C I D N ^ I a n d A - n o evidence of value
from Mr. Bora
- D A B - n o evidence of value from Mr.
Motes (2^-10 example)
- N C D - n o evidence of value from Mr.
Wisecarver
-GAI^-no evidence of value (2^-10
example)

1^

35904

^^ICffenses
Value of Copy
-CIDN^IandA-no
-DAB
no evidence
- N C D - n o evidence
-GAI^ no evidence

evidence of value
ofvalue
of value
ofvalue

^^IC^ffenses
^Mr.Lewis
-Didn't initially know why he was
testifying
-Month before testifying said he could
not put value on classified information
-Days before testifying did not consider
himselfto beavaluation expert
-Nevervalued information before during
his entire career
-Never even tried to verify his guess
- N o t a t h i e v e s market: artificial market

^^IC^ffenses
Value of I n f o r m a t i o n
-CIDN5IandA-Mr.Lewis'Guess
DAB Mr. I^ewis'Guess
-NCD-Mr.l^ewis'Gue99
-GAL-Mr.Lewis'Guess

O^E^GAL
^Wrongful
ChiefNixon No rules against
downloading .mil addresses
-SAWilliamson the DoD warning banner
did not prohibit the downloading
-AKO Accessed at home
^ S t e a l or C o n v e r t
- N o evidence that PFC Manning did
anything with email addresses
-Where is evidence of spearfishing^

1^

35905

O^E^GAL
Value
-Failed to offer any evidence as to actual
value of email addresses that are
temporary
-Chief Rouillard said 10 t o l 5 minutes
from receiving the f o r m - f i l l i n g it o u t and then populating into GA^
-Purely speculative information offered by
Mr.Lewis

C^DI^E^AI^DC^DI^EA

DA8S
^ Specification9of Charge II
-Baseball C a r d s - C o l . D a v i s
- G T F R - l i m i t e d purpose
-CSRTsandARBs
-Habeas Litigation
-Look at highlights Col. Davis
- ^ o f t h e 5 c h a r g e d DABs deal with
individuals that have been released
-Look at portion that is not highlighted
and ask could this be used for
prohibited purposes^

AC^C Document

D S p e c i f i c a t i o n s 5 a n d ^ o f Charge I I
^Flistorical d o c u m e n t
-Records past e v e n t s - t h e 5 W s
-events observable by enemy
-PFC Manning understood use of SlGACTs

^ Government Continued to Use
-Analysis is what is i m p o r t a n t - M r . H a l l
-l^ook at basis for so-called harm
- N O CALL Update

^ S p e c i f i c a t i o n l 5 of Charge I I
-Collection ofopen source information
-Wasn'tarequest document-Ms.
Glenn
-Assumptions and presumptions, but no
sources-Ms.Glenn
-Professor Benkler poorly written
piece that was based upon open
source without any supporting
documentation for conclusions

17

35906

Documents
S p e c i f i c a t i o n 3 o f Charge I I
-Read what was discussed
-Read the purpose o f t h e discussions
-Compare against Stipulations of
^xpectedTestimony
- A s k if this really is the type of
information that could be used for
prohibited purposes

specificationlof Charge
^ Wanton
-Selectedalegitimate journalistic
organization
- H a d access to everything on SIPRNet
-Selected only those items that he
believed could not cause damage

specificationlof Charge
^ Caused to be Published
-Gave documents to Wikileaks, but did
not control if Wikileaks would publish
them
-Arrest of 15 individuals printing antiIraq government l i t e r a t u r e - P ^ 12^
-Wikileaks and other media partners
(New yorkTimes, Guardian, Der
Spiegel) decided what to publish and
how much to publish, if anything

specificationlof Charge
^ Wanton
- ^ v i d e n c e o f p a t h o f t h e intelligence
from PFC Manning to the enemy is
circumstantial evidence to disprove
wanton
• tlBI^ stipulation of Fact
• ^dam Gadahn ^had to tell
go to Wikileaks^
P^t^2

and ^^AP to

1^

35907

Article 10^

Article 10^

Circumstantial Evidence
Actual Knowledge
-Government failed to offer any
evidence as to actual knowledge
Government failed to offer any
evidence as to"general evil intent"
-Government offered only evidence of
"inadvertent, accidental, or negligent"
disclosure to enemy

Article 10^

-Training of intelligence analyst
-PowerPoint Presentation during AIT
-Accessible to the enemy on the
internet(analyst vs.truck driver)
-ACIC Document

ACIC (Page 6)
(U) Wikileaks or^t supports the US Supreme Court ruling regaidmg itie unauthorized release of
the Pcntagoi) Papers by Daniel hllsbcri^. which staled ihal "only a free and unrestrained press can
utTeclisety expose decepliuii in yovemmeniThe Wikileaks org Web site tunher slates the

"We aim for maximum political impact Wc hclio'C thai iranspnrcficy in
governmeni aciiviiies leads lo reduced corruption, belter govemmenl. and
stronger dcmiKfacies All governments can bciKllt from increased scrutiny by the
world community, as well as their own people We believe this scniliny requires
infonnation. Hisiorically thai information has been costly—in terms of human life
and human rights But wiih technological advances—the Internet, and
crypioyraphy—the risks of conveying important inlormation can be lowered "[ j')]

How you indirectly
aid the enemy

19

35908

ACIC (Page 7)
April 204)7 Wikileaks org sialY mem Iters and various authors and contributors have written
numerous news articles and posted the raw data in spreadslieets or Structured Quet\ Language
(SQI,) data base so anyone can examine the information, conduct research, comment upon,
discuss the various units, sec the items oFequipment, sec what ihcy do. and draw their own
conclusions about ihe strategic, political, military , and human rights significance of the
information 115]

ACIC (Page 9)
>Thc foreign stall writer for Wikileaks org. Julian .Assange, wrote several news aniclcs,
coaulhorcd other aniclcs. and dcv-elopcd an interactive data base for the leaked documents In
addition, other Wikileaks org writers and various writers for other media publications wrote
separate news articles based on the leaked information posted to the Web site Assange and his
coauthors claim thai the 2.000 pages of leaked L'S military information provides unit names,
organizational structure, and tables of equipment (TOI-s) for the US Army in Iraq and
Afghanistan They also claimed that unidentified persons vviihin the US government leaked Iht
information to facilitate action by the US C ongress lo force the withdrawal of US troops by
culling olTfunding for the war [ 18)
(U//>'OUO) Assange and other Wikileaks org writers purport that the leaked sensitive TOH
itt formation reveals the following

ACIC (Page 10)
(U) One Wikileaks org news antcle also discusses ihc use of IHOs by foreign terrorists and
insurgent groups and claims that the I t D threat has resulted in a shirt in DoD funding priorilies,
similar to the Manhattan Project to develop atomic weapons in World War II, for current
research, development and ll elding ofll-.O countermeasures through the Joint lED Defeat
Organization In mddiiton, the author of ihe article attempts to provide a cost-io-beticfii analysis
of these IHD tactics and countermeasures The author claims that the leaked information reveals
thai 12.007 Warlock, Counter RCI ED (Remcrtc-controlled Improvised Explosive Device)
Electronic Warfare (CREW), systems are in Iraq and that the purpose ofthe Warlock is to jam
radio signals from devices such as mobile phones to prevent such signals from detonating lEDs

ACIC (Page 12)
(U//FOUO) Julian Assange also staled in his news articles involving the TOE information that
persons were welcome to assist in Ihe following future actions and areas of research invol\ ing
the equipment hstings:

20

35909

ACIC (Page 14)
(U//FOUO) Another example of leaked information posted to the Wikileaks ixg Web site on or
about 7 November 2007 is an outdated copy of the Joint Task t-ortc-Guanlanamo. Camp Delia
Standard Operating Procedures (SOP) marked as UNCLASSIFIED/ZFOUO, signed by MCi
Miller and dated 28 March 2003 A new s article written by Wikileaks org staff writers, also
posted on 7 November 2007, claims Ihe SOP exposes systematic methods for pre\'cniing illegal
combatants and detained prisoners incarcerated at Joint 1'ask Force Guantanamo facilities at
Camp Delta from meeting with Ihe International Red Cross, as well as the use of extreme
psychological stress as a means of torture against detainees The unauthorized release of the SOP
has prompted authors posting to the Wikileaks org Web site lo claim lhat the document proves
the US .'\rmy w as torturing and violating the human rights of detainees held al (manianamo Ba>
This SOP was also the subject of a lawsuit by international human nghts groups and a domestic
civil rights organization requesting the release of the document under the US Freedom of
Information .Act [iM

ACIC (Page 16)
possibilities A former NOIC" employee would be regarded by many as a highly credible source
and either taken at his or her word or asked to provide other bona tides to verify the employmen
claim Given the high visibility and publicity associated with publishing this classified report bv
Wikileaks org. howcx er, attempts lo verify the information were prudent and show journalist
responsibility to the newswonhiness or fair use of ihe classified document ifthey are
invesiigaied or challenged in court 1301

ACIC (Page 15)
objectives Wikileaks org claims the document was leaked by a source it refers to as Pcry ton.
who is described as a former employee of NGIC Both a copy of the actual NGIC classitied
rc[Ktn (in PDF) and the Wikileaks org news article were posted on the Wikileaks org Web site A
variety of newspapers, wire sef\ices, and other news and media organizations wrote numerous
anicles based on the original Wikileaks org news anicle and actual classified document posted in
their Web site

Wikileaks org and some other net^s organizations did attempt to contact the NGIC personnel by
e-mail or telephone to verify ihe information Such cflbrts by Wikileaks org to verify ihe
infonnation are in contravention to its stated pt^icy not to attempt to verify the infonnation it
receives from its sources Wikileaks org went forward wilh publishing Iheir news article based
on the classified NGIC report although they did not receive a response to their inquiry This is of
interest because some journalists exploit Ihe lack of a response to their inquiries by implying that
a refusal to respond, failure lo respond to a FOIA request, or failure lo verify or receive other
iiifomiatitw presumes lhat those failing to respond have something to hide This further weakens

ACIC - Professor Benkler
• ACIC - poorly written and researched
• Wikileaks does verify its information
before publication
• Wikileaks received numerous awards
for its journalistic endeavors
- 2 0 0 8 Index on Censorship Award
- 2 0 0 9 Amnesty International New Media
Award

• MAJ Fein's Characterization of the
quality of Professor Benkler's work

21

35910

Article 104

Article 104

• Actual Knowledge
-ACIC document: Government does not
even know if enemy went to Wikileaks
-Intelligence GAP - is something that
we do not know (all unit witnesses)
-Assumption - is something we don't
know (all unit witnesses)
- No training on particular websites the
enemy may have gone to
-"Presumed" equals negligence and not
actual knowledge

Actual Knowledge
- A l l the of forensics prove that PFC
Manning never discussed the enemy or
wanting to get information to the
enemy
- A l l of the forensics prove that PFC
Manning had a good motive and not a
"general evil intent"

Article 104
C i r c u m s t a n t i a l Evidence
- Evidence of path of the intelligence to
enemy to disprove actual knowledge
• UBL stipulation of Fact
• Adam Gadahn - PE 182

The Truth

-Junior analyst still learning how to
connect all the dots (SFC Anica; CPT
Fulton; CW2 Balonek; CW4 Hack CPT
Lim)
-Limited SIPR access in Garrison (SFC
Anica and CPT Lim)

22

35911

Appellate Exhibit 619
have been entered into
the record as CD/DVDs
and will be maintained
with the original
Record of Trial

35912

Appellate Exhibit 620
ordered sealed for Reason 4
and Reason 8
Military Judge's Seal Order
dated 20 August 2013
stored in the original Record
of Trial

35913

July 26, 2013
Dear Col. Denise Lind,
On the night of July 25th I posted inappropriate messages on twitter relating to a hotel where I
believed participants in the court martial of The United States v. Pfc. Bradley Manning were
lodging. What 1 did was highly unprofessional. I am extremely embarrassed by my conduct and
very sorry for my lapse of judgment.
This was the biggest mistake I've ever made in my life. I am deeply ashamed of this error. I
deeply regret making this information known to the public. It was never my intention to cause
any harm, intimidation, or confrontation; but I realize now how the message could be perceived
in that manner.
My brother proudly served in the Army in Iraq in 2003 and 2004. I would be very upset if
someone ever did this to him. Over the past couple years I have received over a dozen
anonymous death threats related to my support ofWikiLeaks and Bradley Manning, and 1 live
every day fully understanding that intimidation, no matter how abstract, should never be taken
lightly.
This afternoon, I deleted the tweets and I have refrained from sharing any details with the public
and the press about what has happened.
Since December of 2011,1 have been drawing the court martial proceedings, and 1 have been a
proud member of the credentialed media since March of 2012 - attending nearly everyday. I have
been hired to illustrate a book of the entire pretrial and trial. During the school year, I am an
adjunct professor at Bloomfield College, in New Jersey, where I earn less than $10,000 per year.
This book is my livelihood and drawing the proceedings has been a dream-come true.
1 beg you for your forgiveness. I cannot express enough how embarrassed and humbled I am by
this lapse in judgment. I know in past years many famous people have made similar lapse in
judgments on social media, and this situation has opened my eyes to my error, my lapse, and my
wrongdoing.
I was informed that there are no specific rules, but that 1 was being removed at the decision of
the Court. I understand this and know that I am in no position to ask for a second chance. Your
Honor, I respect your Court, I respect your need for security and for decorum.
If you would reconsider this decision and allow me to return to Ft. Meade, to the media
operations center but not the actual courtroom, I would be forever grateful. I would, of course, be
on my best behavior both while at Ft. Meade and during my time off the base.
I am also writing a letter of apology that I hope to be able to send to those who I may have been
affected by my tweet. My sincerest apologies to you and everyone involved in this most
important proceeding.
Sincerely,
Clark Stoeckley

— ' TT GZOa
PAGERHF PAGE
01'

y \^:53. r

35914

Lind, Denise R COL USARMY (US)
From:
Sent:
To:
Cc:

Subject:
Attachments:

David Coombs [coombs@armycourtmartialdefense.com]
Friday, July 26, 2013 8:59 PM
Lind, Denise R COL USARMY (US)
Hurley, Thomas F MAJ USARMY (US); Tooman, Joshua J CPT USARMY (US); Bennett,
Jessice D SSG USARMY (US); Morrow, JoDean (Joe) III CPT USARMY USAMDW (US);
Overgaard, Angel M CPT USARMY (US); Whyte, J Hunter CPT USARMY (US); von Elten,
Alexander S (Alec) CPT USARMY (US); Mitroka, Katherine F CPT USARMY (US); Ford,
Arthur D Jr CW2 USARMY (US); USARMY Ft McNair mdw Mailbox MDW Court Reporters
0MB; Raffel, Michael J SFC USARMY (US); Moore, Katrina R MSG USARMY HQDA OTJAG
(US); Fein, Ashden MAJ USARMY MDW (US)
Clark Stoeckley
LetterofApology.pdf

Ma'am,

I wanted to inform the Court that I received the attached letter from Mr.
Stoeckley. He also informed me that he sent this letter through PAO for you. After reading
his letter, I believe that he deeply regrets his acts and would not repeat them. In light of
this letter, I think the Court should consider allowing Mr. Stoeckley to return to either the
media center or the courtroom.
v/r
David
David E. Coombs, Esq.
Law Office of David E. Coombs
I I South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs(3armycourtmartialdef ense. com
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. I f you are not the intended recipient, please notify the sender
and delete a l l copies. Unauthorized disclosure, copying or use of this information may be
unlawful and is prohibited.***

35915

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 for
Reconsideration and for Mistrial:
Specifications 4, 6, 8,12,16
of Charge I I
(18 U.S.C, § 641 Offenses)
26 July 2013

RELIEF SOUGHT
The United States respectfully requests that the Court deny the Defense Motion for
Reconsideration and for Mistrial: Specifications 4, 6, 8,12, 16 of Charge 11 (18. U.S.C. § 641
Offenses) (hereinafter "Defense Reconsideration Motion").
BURDEN OF PERSUASION AND BURDEN OF PROOF
"On request of any party ovsua sponte, the militaryjudge may, prior to authentication of
the record of trial, reconsider any mling, other than one amounting to a finding of not guilty,
made by the militaryjudge." Rule for Courts-Martial (hereinafter "RCM") 905(f). RCM 905(f)
"permits the militaryjudge to reconsider any ruling that affects the legal sufficiency of any
finding of guilt or the sentence." RCM 905(f), discussion (citing RCM 917(d)).
"The military judge may, as a matter of discretion, declare a mistrial when such action is
manifestly necessary in the interest ofjustice because of circumstances arising during the
proceedings which cast substantial doubt upon the fairness of the proceedings." RCM 915(a).
FACTS
The accused is charged with givingintelligence to the enemy, in violation of Article 104,
Unifonn Code ofMilitary Justice (hereinafter "UCMJ"). The accused is also charged with
causing intelligence to be "wrongfully and wantonly" published in violation of Article 134,
UCMJ, eight specifications alleging misconduct in violation of 18 U.S.C. § 793(e), five
specifications alleging misconduct in violation of 18 U.S.C. § 641 (hereinafter "§ 641"), two
specifications alleging misconduct in violation of 18 U.S.C. § 1030(a)(1), five specifications
alleging misconduct in violation of Article 92 of the UCMJ. See Charge Sheet.
The accused pleaded guilty by substitutions and exceptions to Specifications 2, 3, 5, 7, 9,
10, 13, 14 and 15 ofCharge 11. See Appellate Exhibit (hereinafter "AE") CDXLIV. The
accused did not plead guilty, inter alia, to Specifications 4, 6, 8, 12, and 16 ofCharge II. See id.
WITNESSES/EVIDENCE
The United States does not request any witnesses be produced for this response. The
United States requests tliat the Court consider the Charge Sheet, testimony, and the Appellate
Exhibits (hereinafter "AE") cited herein.
APPELLATE E X H I B l T _ m
PAGE REFERENCED:

PAGE

OF

PAGES

35916

LECALAUTFIORITY AND ARGUMENT
^641reaches information as chaiged. The Defense had substantial notice as detailed
herein and as explicitly acknowledged by the Defense prior to the start ofthe trial. Therefore,
the Defense has not been prejudiced, and the Defense^srequest for reconsideration oramistrial
should be denied.
LDEFENSEACl^NOWLEDCED USEOF INFORMATION
The Defense had substantial notice that the United States intended to prove valuation by
the contents—theinformation—in the asported records. ^^^Oovernment^641ResponsePart
lll.B(detailing numerous filings describing the expected testimonyofMr.Lewis regarding the
valueofinfbnnation). TheDcfcnseavers that it wouldhaveconductedits casedifferentlyhad it
known infonnation would be at issue. The United States has informed the Defense not only of
the useofinfbrmation in the charged property,butalsoofthe useof contextual infbimation
outside the charged property. ^^^AEDXLIV. TheUnited States stated:
Similaily,valuation evidence also requires specialised knowledge
appropriate for expert testimony.
The United States will
demonstrate valuation by presenting evidence ofthe information's
value in a thieves^ market. This opinion is based on unique,
specialised knowledge and experience of an intelligence
professional and is unknown to the average fact finder. The
thieves^ market requires demonstration of what types of
information are valuable tofbreign adversaries. The evidence is
ftirther strengthened by an explanation ofwhy the infbimation is
valuable. Moreover, any type ofevidence supporting valuation
necessarily requires discussion of content and context. The
thieves^ market involves the motives and resources of foreign
adversaries. Furthermore, the United States will present evidence
about the systems required to create, maintain, and protect the
information. This teclmical and financial infonnation is also
beyond the ken o f a n average fact finder. Thus, an expert is
appiopiiatefbr presentation of valuationevidence and discussion
ofits context.
AEDXLIV. Inresponse, the Defense acknowledged the appropriateness ofthe useof
information, stating:
The Defense acknowledges that Ooveinment witnesses are
permitted to testify as to alleged value of the infonnation andto
any alleged "thieves market" for the infonnation. Since value is
based upon face, pai,or market value,these witnesses should be
permitted to state how this information is valued. Establishing the
alleged value (face, par, or market) ofthe charged information
does not require the witness to testify about any information

35917

beyondthefbur corners of the document. The"context" tothe
infonnation within the charged document and how that infonnation
could or could not impact on other infonnation is simply not
relevant. The charged infonnation has value, i f at all, based upon
its content and not based upon contextual infonnation surrounding
thedocument.

AEDXLVll (footnote omitted). Based on the arguments, the Court mled that limited contextual
information outside the charged property would be admissible. ^^^AEDXLIX. Thus,
infonnation contained in the charged property is also properly admissible. ^^^AEDCXlll.
Furthennore, the Defense argues that Mr. Lewis^stestimony is prejudicial despite the
filings described in Part 111.B ofthe Ooveimnent^641Response. Notwithstanding these filings
and the Court stating it would pennit the Defense to reopen its case to locateavaluation expert,
the Defense did not lequestaDefense expert in counterintelligence. Moreover, the Defense also
did not request to brieftheissueofMr.Lewis^sexpertise. Instead, the Defense crossexamined
Mr. Lewis and fully litigated Mr. Lewis^sexpertise during the trial. The Defense raises no law
in support ofits position regardingMr. Lewis. In lieu ofprecedent, the Defense attacks Mr.
Lewis^scredibilitywith an unsworn letter that has not been admitted into evidence. The Defense
proffers this unsworn letterthat discusses an issue about which Ml. Lewis was subject to crossexamination, .^^^TestimonyofMr.Lewis, after Mr.Lewis^stestimony and not at trial. In
response to crossexamination by the Defense, Mr. Lewis distinguished between valuinga
random document and valuing classified informations Mr. Lewis testified he could value
classified information and accordinglyoffered an opinion on the valueofthe compromised
information.
l l . U N l T E D STATES CHARGED DATABASES CONTAININORECORDS
The Defenseasserts that it"didnot know that either^databases^ or ^records^ included
infonnation until 24 July2013,afterthe close of evidence."DefenseReconsiderationMotion at
1. This assertion repeats the same argument presentedbythc Defense in the Defense Motion for
DirectedVerdict: Charge 11, Specifications 4, 6, 8, 12(hereinafter^^efense^641Motion").
^^^,^.^.,Defense^641Motion^5. The United States briefed these issues in the Government
Response to Defense Motion for DirectedVerdict: ChargeIl,Specifications4,6,8,12,andl6
(hereinafter "Government^641Response") and the Govennnent Brief onl8U.S.C.^641 and
lntangiblePioperty,toincludelnfbnnation.^^^AEDXCLXXXVI^AEDCVl.
Contraryto Defense arguments, the United States need not specifically allege infonnation
in theCharge Sheet. ^^^^^^^^^^^^^^^^^.^i^.^^i^^^^^,932F.2d306,309 10(4thC
^^1^^^^^, the Fourth Circuit upheld the defendant^sconvictionunder^641fbr converting
infonnation where the defendant was charged with converting and conveying documents.
The Fourth Circuit noted that the accused "was not charged with conveying abstract infonnation.
He was charged with conveying and converting documents,which, although copies, were things
ofvalue and tangible property ofthe United States."^, (deciding that^641 applied to
infonnation). Siinilaily,the Third Circuit found merit to the argument that^641 encompassed

35918

information where the United States "charged that the defendants . . . converted to their own use
'records of the United States; that is, photocopies of official files of the Federal Bureau of
Investigation, ofa value in excess of $ 100.00.'" United States v. DiGilio, 538 F.2d 972, 975-78
(3d Cir. 1976). Thus, the Third Circuit found infonnation to be an inherent component of a
record that need not be specifically charged where the accused had notice that he was charged
with converting records. See id.; AE DCXIII.
Furthermore, courts use the tenns "record" and "information" interchangeably. See
UnitedStates v. Jordan, 582. F.3d 1239, 1246-47 (11th Cir. 2009). In Jordan, an accused was
charged with conveying a "thing of value of the United States, that is, information contained in
the NCIC records." Id. at 1246. The Eleventh Circuit used "record" and "information"
interchangeably, and intequeted the § 641 charge as requiring the prosecution to prove that the
defendant "knowingly and without authority conveyed a thing of value, a criminal record
obtained from the NCIC, to [co-defendant], and that [co-defendant] knowingly received and
retained it." See id. at 1247; id. at 1244 ( "Count Two charged [defendant] with conveying the
NCIC records to [co-defendant] . . . in violation of § 641."). A record inlierently contains
infonnation. See AE DCXlll. Therefore, the United States was not required to chaige
"infonnation" specifically where it charged a collection of records. See Charge Sheet.
The precedent cited by the Defense is inapplicable to this case. United States v. Veloria,
2011 WL 1330779 at *4 (A. Ct. Crim. App. 2011), holds that substituting one owner ofthe
property for another is a major amendment. Similarly, United States v. Marshall, 67 M.J. 418,
420-21 (C.A.A.F. 2009) holds that substituting the identity of the accused's custodian as charged
constituted a material and, therefore, fatal variance. Here, the amendment approved by the
Court, see AE DCXIII, does not substitute one property for another; rather, it reduces the scope
of the chai ged property. See Government § 641 Response Part II.C. Tlie database source of the
charged records or the source of the stolen email accounts in the United States Forces-Iraq
Global Address list has not been substituted. The sources remain the same. The amendments are
minor and therefbrepennissible, See id.; AE DCXIII.
III. VALUATION OF INFORMATION DOES NOT PREJUDICE DEFENSE
In accordance with the Court's mling, see AE DCXIII, the United States relies on two
fomis of evidence of valuation. First, the United States relies on the expert opinion ofMr.
Lewis. Second, the United States relies on evidence of the personnel costs required to create the
records. The value of sei-vices used to create property is proper evidence of the property's value.
See UnitedStates v. May, 625. F.2d 186, 192 (8th Cir. 1980) (holding that cost of pilot salaries
was part of the value of converted flight time). Moreover, computer files have been valued by
calculating the wages paid to create the files. United States, v. Walter, 43 M.J. 879, 885 (N-M.
Ct. Crim. App. 1996) ("The valuation method employed—the personnel or labor cost of
producing or reproducing the files, was reasonable and conservative under the circumstances.").
Here, the United States presented evidence of the time required to create detainee
assessment briefs and email accounts in the United States Forces-Iraq Global Address list. The
evidence provides conservative estimates based on the most junior Soldiers and is therefore
appropriate under Walter. See Walter, supra. Moreover, the valuation submitted by the United

35919

States is based on the cost ofcreating the individual email account ofdetainee assessment briefs.
Decreasing the nuinberofemail accounts does not affect the cost per account. Therefore, the
minor amendment to Specificationl6ofCharge 11 does not affect this evidence. Thesmaller
nnmber does not prejudice the accused because he is not subject to increased punishment, nor
has thechaiged property changed outsideaieduction in scope.
The Defense suffered no prejudice with evidence that documents are valued bytheir
contents. ^^^Government^641Response Part 111. "Where documents constitute the property
'obtained orused,'as that phrase has been defined, the'ideas'contained in the documents, rather
than the paper on which the ideas are written, establish the value ofthe stolen property." D^^^^7^^^,
538F.2dat977n.9. Tohold that records cannot be valued by their contents and intrinsic
qualities "would do violenceto the pui^osestatute."
at 979(finding that payments made
constituted proper evidenceofvalueonathievesmarket)(quoting^B^^^^^^^^^^^.^^^..^^.^^^^, 282
F.2d 750, 755(3d Cir. I960)). Indeed,"there must be some fiexibilitywith respect to methods
ofproof of value."^^^. (comparing market valuation under^641 to valuation underl8U.S.C.^
2313)
The Defense began its case bypioffeiing that the accused selected specific typesof
records based on the infbiinationtherein. The Defense proffered that: l)sigiiificant activity
reports fiom the Combined Information DatabaseNetwoik Exchanges Iraq and Afghanistan did
not discuss ftiture missions, 2) cables fiom the Net-Centric Diplomacy database did not contain
intelligence souices,3)detainee assessment briefs did not have intelligence sources listed by
name, and 4) the accused selected the information to make the worldabetter place.
The United States briefed the Defense more thanl8months in advance of trial about the
evidence and theory ofthis case. ^^^AECCLXIV Enclosures 4-5. The Defense was briefed
about the digital forensic evidence the United States intended to use at trial. The Defense
argument that it would have conducted its case diffeiently,.^^^ Defense Reconsideration Motion
^23,lacks merit. TheDefenseReconsiderationMotiondeinuisto its tactical decisions after-thefact. Ultiinately,the Defense admitsit considered objecting to evidence but chose to waive these
objections. i^^^Govenunent^641ResponsePaitI.C. The Defense'scurient objections set forth
in the Defense Reconsideration Motion are not timely and should be precluded accordingly.
IV MISTRIALII^APPROPRIATE
RCM915(a)vests military judges with the discretion to declaieamistiial when
"manifestlynecessary in the interest ofjustice because of circumstances arising during the
proceedings which cast substantial doubt upon the fairness ofthe proceedings."RCM915(a).
"However, thediscussionto the mle advises caution, noting that mistrials are to be used'under
urgent circumstances, and for plain and obvious reasons.'" ^B^^^^^^^^^^^^^.Bf.^^i^^^,68M.J.108,
122(C.A.A.F.2009)(citingRCM915,discussion). In the instant matter, the Defense had ample
noticeoftheuseofinfoimationand theUnited States'prosecutorial theory. Accordingly,the
circumstances do not cast doubt upon the fairnessofthe pioceedings.The circumstances do not
wanantamistiial. ^^^AEDCXlll.

35920

CONCLUSION
^641reaches infonnation as chaiged. The Defense had substantial notice as detailed
herein and as explicitly acknowledged bythe Defense priorto the start ofthe trial. Therefore,
the Defense has not been preiudiced, and the Defcnse'srequest for reconsideration oramistrial
should bedenied.

^

^

^

^

^

ALEXANDERS.
ELTEN
CPT,JA
Assistant Trial Counsel
Icertifythatlsei^ed or caused to be sei^edatme copy ofthe above on Mr. David
Coombs, Civilian DefenseCounsel via electronic mail, on 26July 2013.

/|L v\ '^k
I

ALEXANDER S. VON ELTEN
CPT, JA
Assistant Trial Counsel

35921

DEPARTMENT OF THE ARMY
us ARMY INSTALLATION MANAGEMENT COMMAND
HEADQUARTERS, UNITED STATES ARMY GARRISON
4551 LLEWELLYN AVENUE. sums 5000
FORT GEORGE G. MEADE. MARYLAND 207555000



REPLY TO
ATTENTION OF:

Office of the Garrison Commander

Mr. Clark Stoeckley
Adjunct Professor

Bloomfield Coller

Dear Mr. Stoeckley:

Pursuant to the statutory authority of Title 18, Section 1382, United States Code, you
are hereby prohibited from entering all areas of Fort George G. Meade. This bar order
is effective upon your receipt of this letter, and will remain in effect until rescinded in
writing.

This limited bar order is based on the following misconduct: On 25 July 2013, you
made a series of postings on your Twitter account,
identifying the lodging location of the members of the prosecution team for U.S. v. PFC
Bradley Manning court?martial being held at Fort George G. Meade, Maryland. You
posted the link to the hotel on numerous occasions, along with threatening comments,
for example: "l don't know how they sleep at night, but I do know Your
postings were threatening in nature, and targeted government officials.

As the Garrison commander, it is my inherent duty to maintain good order and
discipline and to ensure a safe environment for everyone that resides and works on the
installation. Your actions cause me great concern for the security of Fort George G.
Meade. To prevent further security threats, you are not permitted to enter Fort George
G. Meade until further notice.

If you are found within the limits of Fort George G. Meade, you will be detained by
military police authorities and turned over to Federal officials for prosecution under
Section 1382 of Title 18 of the United States Code.

This Federal statute is hereby quoted in its entirety for your information:
Section 1382: Entering military, naval, or Coast Guard Property
Whoever, within the jurisdiction of the United States, goes upon any military, naval,

or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any
purpose prohibited by law or lawful regulation; or


.. Irv
vi:

35922

Whoever reenters or is found within any such reservation, post, fon?, arsenal, yard,
station, or instaltation, after having been removed therefrom or ordered not to reenter by
any officer or person in command or charge thereof- shaii be fined under this title or
imprisoned not more than six months, or both.

You have ?ve (5) calendar days from the receipt of this letter to present me with
matters as to why you should not be barred from Fort George Gyleade.
.5



Edward C. Rothstein
Colonel, U.S. Army
Commanding

i

35923

UNITED STATES OF AMERICA
RULING: Defense Motion
For Reconsideration of
Court's 24 July 2013 Supplemental
Ruling - RCM 917 Motion
18 U.S.C. §641 Specifications

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

30 July 2013

On 24 July 2013, the Defense filed a Motion for Reconsideration (AE 614) of this
Court's 24 July 2013 Supplemental Ruling: Defense Motions for Findings of Not Guilty - RCM
917 (AE 613). The ruling denied the Defense Motions for Findings of Not Guilty and for
Mistrial for specifications 4, 6, 8, 12, and 16 of Charge II. On 26 July 2013, the Govemment
filed a response in opposition (AE 621).
The Defense Motion for Reconsideration presents additional argument for the issues
raised in the original Defense Motion (AE 593). The Court adheres to its ruling at AE 613. The
Court has ruled and the Defense has made its record.
Ruling:
The Defense Motion for Reconsideration is DENIED.
So ORDERED this 30th day ofJuly 2013.

2 ^
DENISE R. LIND
COL, JA
Chief Judge, 1^' Judicial Circuit

^2-3
PA''.

.'•J.-

35924

Verdict
Of Chgrge I and its specification - Not Guilty
Of Specification 1 of Charge II - Guilty
Of specification 2 of Charge II - in accordance with your plea, Guilty, except the words and figures "15
February 2010" and "5 April 2010", substituting therefore the words and figures "14 February 2010" and
"21 February 2010"; further excepting the words "information relating to the national defense, to wit:";
further excepting the words "with reason to believe such information could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit, or
cause to be communicated, delivered, or transmitted,", substituting therefore the words "did willfully
communicate"; further excepting the words and figures, "in violation of 18 U.S. Code Section 793(e),"; of
the excepted words and figures. Not Guilty; of the substituted words and figures. Guilty.
Of specification 3 of Charge II, Guilty except the words and figures "22 March 2010", substituting
therefore the words and figures "17 March 2010"; of the excepted words and figures, Not Guilty, of the
substituted words and figures. Guilty.
Of specification 4 of Charge II, Guilty
Of specification 5 of Charge II, Guilty
Of specification 6 of Charge II, Guilty
Of specification 7 of Charge II, Guilty
Of specification 8 of Charge 11, Guilty
Of specification 9 of Charge II, Guilty
Of specification 10 of Charge II, Guilty
Of specification 11 of Charge II, Not guilty
Of specification 12 of Charge II, Guilty
Of specification 13 of Charge II, Guilty
Of specification 14 of Charge II, in accordance with your plea. Guilty, except the words and figures "15
February 2010" and "18 February 2010", substituting therefore the words and figures "14 February
2010" and "15 February 2010"; further excepting the words "knowingly exceeded authorized access",
substituting therefore the words "knowingly accessed"; further excepting the words "with reason to
believe that such information so obtained could be used to the injury of the United States, or to the
advantage of any foreign nation, in violation of 18 U.S. Code Section 1030(a)(1)"; of the excepted words
and figures. Not Guilty; of the substituted words and figures. Guilty.

35925

Of specification 15 of Charge II, Guilty
Of specification!^ of Charge II,Guilty
OfChargell^Guilty
Of specificationlof Charge III, Guilty
Of specification2of Charge III, Guilty
Of specification3of Charge III,Guilty
Of specific9tion4of Charge III, Guilty
Of specific9tion5of Charge III, in 9ccordance with your plea, Guilty,except the words and figures"!
November 2009",substituting therefore the words and figures "8 .Ianuary2010";ofthe excepted words
and figures. Not Guilty; ofthe substituted words and figures. Guilty.
OfCharge III, Guilty

0 35926





IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES



SPECIAL FINDINGS
v.


MANNING Bradle E. PFC
U.S.Army,
Headquart rters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: [5 August 2013

Fort Myer, VA 22211

The Defense has requested the Court to issue special ?ndings regarding the offenses for which the Court
found PFC Manning guilty. The Court considered all legal and competent evidence, and the reasonable
inferences to be drawn from the evidence, and resolved all issues of credibility. The Court will not make
special findings for any speci?cation where the ?nding was not guilty or guilty by exceptions and
substitutions in accordance with PFC Manning?s guilty plea.

The Court makes the following special ?ndings:

1. CHARGE II, Speci?cation I: Wrongfully and Wantonly Causing Publication of Intelligence
Belonging to the United States on the Internet Knowing the Intelligence is Accessible to the Enemy
to the Prejudice of Good Order and Discipline in the Armed Forces or of a Nature to Bring
Discredit Upon the Armed Forces

l. The Court applied the following de?nitions for this offense:
?Intelligence? means any information helpful to the enemy which is true, at least in part.

?Enemy? includes not only organized opposing forces in time of war but also any other hostile body that
our forces may be opposing and includes civilians as well members of military organizations.

?Wrongful? means without legaljusti?cation or excuse.

?Wanton? includes ?recklessness? but may connote willfulness, or a disregard of probable consequences
and thus describes a more aggravated offense. ?Reckless? conduct is conduct that exhibits a culpable
disregard of foreseeable consequences to others from the act or omission involved. PFC Manning need
not intentionally cause a resulting hann. The ultimate question is whether under all the circumstances,
PFC Manning?s conduct was of that heedless nature that made it actually or imminently dangerous to
others.

?Knowledge? requires that PFC Manning acted with actually knowledge that intelligence published on
the intemet was accessible to the enemy. The Court may not ?nd the accused guilty of this offense if the
Court ?nds PFC Manning should have known, but did not actually know this fact. Knowledge, like any
other fact, may be proved by circumstantial evidence, including PFC Manning?s training, experience, and
military occupational specialty.

?Caused to be published? means the action of PFC Manning was a proximate cause of the publication
even if it is not the only cause, as long as it is a direct or contributing cause that plays a material role,

1 . guy



meaning an important role, in bringing about the publication. An act is not a proximate cause if some
other unforeseeable, independent, intervening event, which did not involve PFC Manning?s conduct, was
the only cause that played any important part in bringing about the publication.

?Conduct prejudicial to good order and discipline? is conduct which causes a reasonably direct and
obvious injury to good order and discipline. ?Service discrediting conduct? is conduct which tends to
harm the reputation of the service or lower it in public esteem.

With respect to ?prejudice to good order and discipline,? the law recognizes that almost any irregular or
improper act on the part of a service member could be regarded as prejudicial in some indirect or remote
sense; however, only those acts in which the prejudice is reasonably direct and palpable is punishable
under this Article.

With respect to ?service discrediting,? the law recognizes that almost any irregular or improper act on the
part of a service member could be regarded as service discrediting in some indirect or remote sense;
however, only those acts which would have a tendency to bring the service into disrepute or which tend to
lower it in public esteem are punishable under this Article.

Under some circumstances, the accused?s conduct may not be prejudicial to good order and discipline but,
nonetheless, may be service discrediting. Likewise, depending on the circumstances, the accused?s
conduct can be prejudicial to good order and discipline but not be service discrediting.

2. The Court ?nds beyond a reasonable doubt that:

(1) at or near Contingency Station Hammer, Iraq, between on or about 1 November 2009 and on or
about 27 May 2010, PFC Manning wrongfully and wantonly caused to be published on the intemet,
intelligence belonging to the United States Government, having knowledge that Intelligence published on
the intemet is accessible to the enemy;

(2) the intelligence PFC Manning caused to be published on the intemet included the 12 Jul 07 CZ
Engagement Zone 30 GC Anyone.avi video charged in speci?cation 2 of Charge II, the more than one
classi?ed memorandum produced by a United States government intelligence agency charged in
speci?cation 3 of Charge 11, the more than 380,000 records from the Combined Information Data
Network Exchange (CIDNE) Iraq database charged in speci?cation 4 of Charge II, the more than 90,000
records from the CIDNE-A database charged in speci?cation 6 of Charge 11, the more than 700 records
from the Southern Command (SOUTHCOM) database charged in speci?cation 8 of Charge 11, the more
than five classi?ed records relating to a military operation in Farah Province, Afghanistan charged in
speci?cation 10 of Charge II, the more than 250,000 cables from the Department of State Net-Centric
Diplomacy database (DOS NCD) charged in speci?cation 12 of Charge 11, the classified DOS cable titled
?Reykjavik-13? charged in speci?cation 14 of Charge II, and the Army Counter-Intelligence Center
(ACIC) Report dated 18 March 2008 entitled ?Wikileaksorg-An Online Reference to Foreign
Intelligence Services, Insurgents, or Terrorist Groups?? charged in speci?cation 15 of Charge

(3) At the time of the charged offense, al Qaeda and al Qaeda in the Arabian Peninsula were enemies
of the United States. PFC Manning knew that al Qaeda was an enemy of the United States.

(4) At the time of the charged offense, PFC Manning had knowledge that intelligence published on
the intemet was accessible to al Qaeda.

(5) PFC Manning?s conduct was wrongful.

0 0 35928



(6) PFC Manning?s conduct was of a heedless nature that made it actually and imminently
dangerous to others. His conduct was both wanton and reckless.

(7) The conduct of PFC Manning was to the prejudice of good order and discipline in the anned
forces.

(8) The conduct of PFC Manning was of a nature to bring discredit upon the anned forces.

2. CHARGE II, Speci?cations 4, 6, 8, 12, and 16: Stealing, Purloining, or Knowingly Converting
Records Belonging to the United States of a Value in Excess of $1,000.00

1. The Court applied the following definitions for these offenses:

To ?steal? means to wrongfully take money or property belonging to the United States government with
the intent to deprive the owner of the use and bene?t temporarily or pennanently.

?Wrongful? means without legal justification or excuse.

To ?purloin? is to steal with the element of stealth, that is, to take by stealth the property of the United
States government with intent to deprive the owner of the use and bene?t of the property temporarily or
permanently.

A ?taking? doesn?t have to be any particular type of movement or carrying away. Any appreciable and
intentional change in the property?s location is a taking, even if the property isn?t removed from the
owner?s premises. PFC Manning did not have to know the United States govemment owned the property
at the time of the taking.

A ?conversion? may be consummated without any intent to pennanently deprive the United States of the
use and bene?t of the property and without any wrongful taking, where the initial possession by the
converter was entirely law?rl. Conversion may include the misuse or abuse of property. It may reach use
in an unauthorized manner or to an unauthorized extent of property placed in one?s custody for limited
use. Not all misuse of government property is a conversion. The misuse must seriously and substantially
interfere with the United States govemment?s property rights.

?Value? means the greater of (1) the face, par, or market value, or (2) the cost price, whether wholesale or
retail. A ?thing of value? can be tangible or intangible property. Government information, although
intangible is a species of property and a thing of value.

The market value of stolen goods may be determined by reference to a price that is commanded in the
market place whether that market place is legal or illegal. In other words, market value is measured by
the price a willing buyer will pay a willing seller. (The illegal market place is also known as a ?thieves
market?.) ?Cost price? means the cost of producing or creating the specific property allegedly stolen,
purloined, or knowingly converted.

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

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





The Court applies the same de?nitions for prejudice to good order and discipline in the armed forces and
conduct of a nature to bring discredit upon the armed forces as applied in the special ?ndings for
specification 1 of Charge 11.

The Court has taken judicial notice that Title 18, United States Code Section 641 was in existence on the
dates alleged in speci?cations Charge II.

2. The Court ?nds beyond a reasonable doubt that:
(1) at or near Contingency Operating Station Hammer, Iraq

SPECIFICATION 4: between on or about 31 December 2009 and on or about 5 January 2010; PFC
Manning did steal, purloin, or knowingly convert records to his own use or someone else?s use, to wit: a
portion of the Combined Information Data Network Exchange Iraq database containing more than
380,000 records;

SPECIFICATION 6: between on or about 31 December 2009 and on or about 8 January 2010; PFC
Manning did steal, purloin, or knowingly convert records to his own use or someone else?s use, to wit: a
portion of the Combined Information Network Exchange Afghanistan database containing more than
90,000 records;

SPECIFICATION 8: on or about 8 March 2010; PFC Manning did steal, purloin, or knowingly convert
records to his own use or someone else?s use, to wit: a United States Southern Command database
containing more than 700 records;

SPECIFICATION 12: between on or about 28 March 2010 and on or about 27 May 2010; PFC Manning
did steal, purloin, or knowingly convert records to his own use or someone else?s use, to wit: the
Department of State Net?Centric Diplomacy database containing more than 250,000 records;

SPECIFICATION 16: between on or about 11 May 2010 and on or about 27 May 2010; PFC Manning
did steal, purloin, or knowingly convert records to his own use or someone else?s use, to wit: a portion of
the United States Forces Iraq Microso? Outlook/SharePoint Exchange Server global address list (USF-I
GAL), to wit: 74,000 addresses from the list.

(2) for speci?cations Charge II, PFC Manning did steal and purloin the
records, and information therein, by using the Secret Internet Protocol Router Network
computers in the 2nd Brigade Combat Team, 10?? Mountain Division Bde) sensitive compartmented
information facility (SCIF) to extract the records, and information therein, from the relevant database,
place the records, and information therein, on PFC Manning?s private portable digital media or platform,
and asport the records, and information therein, to his private quarters. For speci?cations Charge II, PFC Manning had the speci?c intent to steal at the time of the extraction of the records,
and information therein, from the relevant database.

(3) for speci?cations 4, 6, 8, and 12 of Charge II, the Court ?nds that PFC Manning knowingly
converted the records and information therein, by sending them to WikiLeaks. These knowing
conversions involved a misuse of the records, and information therein, that seriously and substantially
interfered with the United States government?s property rights. The records, and information therein, are
classi?ed. The knowing conversions by PFC Manning deprived the United States government of the
ability to protect its classi?ed information by storing it only on classi?ed networks required to be located

in a SCIF and by restricting access to the classi?ed infonnation only to persons with appropriate security
clearances and a need to know the information.

(4) for speci?cation 16 of Charge 11, the Court ?nds PFC Manning specifically intended to
knowingly convert the records, and information therein, by giving them to WikiLeaks. Following a
pattern of stealing classi?ed records, and information therein, and knowingly converting the classi?ed
records and information therein, to WikiLeaks, PFC Manning viewed a 7 May 2010 tweet from
WikiLeaks requesting a list of as many .mil addresses as possible. PFC Manning drafted a tasker for
himself to ?acquire and ex?ltrate Global Address List from United States Forces-Iraq (USF-I) Microsoft
Outlook/Share-point Exchange server?. PFC Manning used the peter.bigelow account on the 2/ 10"? Bde
supply room Non-secure lntemet Protocol router Network computer to extract 74,000 email
addresses that were part of the GAL. On or about 13 May 2013, PFC Manning asported the
addresses to his personal Macintosh (MAC) computer, with the intent to send them to WikiLeaks. PFC
Manning was apprehended on 27 May 2010. These acts were done with the speci?c intent to knowingly
convert the records, and information therein, to WikiLeaks. The acts amounted to more than mere
preparation. Preparation consists of devising or arranging the means or measures necessary for the
commission of the attempted offense. They were a substantial step and a direct movement toward the
commission of the knowing conversion. The acts would have apparently tended to bring about the
commission of the intended offense of knowing conversion. The acts would have resulted in the actual
commission of the offense of knowing conversion, except for the unexpected intervening circumstance of
PFC Manning?s apprehension on 27 May 2010, which prevented completion of that offense. Although
not raised by the parties as a special defense, the Court ?nds that PFC Manning did not voluntarily
abandon the attempted knowing conversion by deleting the 74,000 addresses on his MAC computer. PFC
Manning deleted evidence of other classi?ed information he knowingly converted to WikiLeaks from his
personal MAC computer.

(Special Findings Common to all specifications)

(5) the records, and information therein, belonged to the United States or a department or agency,
thereof;

(6) PFC Manning acted knowingly and willfully and with the intent to deprive the government of
the use and bene?t of the records; and

(7) the records were of a value greater than $1,000.00 as valued by the cost of production of the
information in the records and the records, and, as an independent basis of valuation for each
speci?cation, by the thieves market.

(8) at the time 18 U.S.C. Section 641 was in existence on the dates alleged in the speci?cations;

(9) under the circumstances, the conduct of PFC Manning was to the prejudice of good order and
discipline in the armed forces.

(10) under the circumstances, the conduct of PFC Manning was of a nature to bring discredit
upon the armed forces.

3. CHARGE II, Speci?cations 3, 5, 7, 9, 10, and 15: Transmitting Defense information.

1. PFC Manning?s plea established all of the elements of these offenses except the following:



0 0 35931

(1) the classi?ed records, memorandum, video, and ?les described for each speci?cation was
information related to the national defense;

(2) PFC Manning had reason to believe the classi?ed records, memorandum, video, and ?les
described for each speci?cation could be used to the injury of the United States or to the advantage of any
foreign nation; and

(3) 18 U.S.C. ?793(e) was in existence on the dates alleged in the speci?cations.
2. The Court applied the following de?nitions for these contested elements:

The term ?national defense? is a broad term which refers to the United States military and naval
establishments and to all related activities of national preparedness.

To prove that documents, writings, photographs, videos, or information relate to the national defense,
there are two things that the government must prove:

(1) that the disclosure of the material would be potentially damaging to the United States or
might be useful to an enemy of the United States; and

(2) that the material is closely held by the United States government, in that the relevant
government agency has sought to keep the information from the public generally and has not
made the documents, photographs, videos, or computer ?les available to the general public.
Where the infonnation has been made public by the United States government and is found in
sources lawfully available to the general public, it does not relate to the national defense.
Similarly, where the sources of information are lawfully available to the public, and the
United States government has made no effort to guard such information, the information
itself does not relate to the national defense.

In determining whether material is ?closely held,? the Court considered whether it has been classi?ed by
appropriate authorities and whether it remained classi?ed on the date or dates pertinent to the charge
sheet. The Court considered whether the infonnation was classi?ed or not in determining whether the
information relates to the national defense. However, the fact that the information is designated as
classi?ed does not, in and of itself, demonstrate that the information relates to the national defense.

?Reason to believe? means that PFC Manning knew facts from which he concluded or reasonably should
have concluded that the information could be used for the prohibited purposes. In considering whether
PFC Manning had reason to believe that the information could be used to the injury of the United States
or to the advantage of a foreign country, the nature of the information involved may be considered. The
fact-?nder need not determine that PFC Manning had reason to believe that the information would be
used against the United States, only that it could be so used. Additionally, the likelihood of the
information being used to the injury of the United States or to the advantage of any foreign nation must
not be remote, hypothetical, speculative, far-fetched, or fanci?il. The Government is not required to prove
that the information obtained by PFC Manning was in fact used to the injury of the United States or to the
advantage of any foreign nation.

The Government does not have to prove that PFC Manning had reason to believe that his act could both
injure the United States and be to the advantage of a foreign country the statute reads in the alternative.
Also, the country to whose advantage the information could be used need not necessarily be an enemy of
the United States. The statute does not distinguish between friend and enemy.

In detennining whether the person who received the information was entitled to have it, the Court
considered all the evidence introduced at trial, including any evidence concerning the classi?cation status
of the information, any evidence relating to law and regulations governing the classi?cation and
declassi?cation of national security information, its handling, use, and distribution, as well as any
evidence relating to regulations governing the handling, use, and distribution of information obtained
from classi?ed systems.

The Court has taken judicial notice that Title 18, United States Code Section 793(e) was in existence on
the dates alleged in speci?cations Charge 11.

3. The Court ?nds beyond a reasonable doubt as follows:

(1) SPECIFICATION 3: the more than one classi?ed memorandum produced by a United

States government intelligence agency was information related to the national defense at the time of the
willful communication. Disclosure of the material would be potentially damaging to the United States.
The more than one classi?ed memorandum produced by a United States government intelligence agency
was closely held by the United States government. PFC Manning had reason to believe the information
could be used to the injury of the United States or to the advantage of any foreign nation.

SPECIFICATION 5: the more than 20 classi?ed records from the Combined Infonnation Data
Network Exchange Iraq database was information related to the national defense at the time of the willful
communication. Disclosure of the material would be potentially damaging to the United States. The more
than one classi?ed memorandum produced by a United States government intelligence agency was
closely held by the United States government. PFC Manning had reason to believe the information could
be used to the injury of the United States or to the advantage of any foreign nation.

SPECIFICATION 7: the more than 20 classi?ed records from the Combined Information Data
Network Exchange Afghanistan database was information related to the national defense at the time of
the willful communication. Disclosure of the material would be potentially damaging to the United States.
The more than one classi?ed memorandum produced by a United States government intelligence agency
was closely held by the United States government. PFC Manning had reason to believe the information
could be used to the injury of the United States or to the advantage of any foreign nation.

SPECIFICATION 9: the more than 3 classi?ed records from a United States Southern
Command database was infonnation related to the national defense at the time of the willful
communication. Disclosure of the material would be potentially damaging to the United States. The more
than one classi?ed memorandum produced by a United States government intelligence agency was
closely held by the United States government. PFC Manning had reason to believe the information could
be used to the injury of the United States or to the advantage of any foreign nation.

SPECIFICATION 10: the more than 5 classi?ed records relating to a military operation in Farah
Province, Afghanistan occurring on or about 4 May 2009 was information related to the national defense
at the time of the willful communication. Disclosure of the material would be potentially damaging to the
United States. The more than one classi?ed memorandum produced by a United States government
intelligence agency was closely held by the United States government. PFC Manning had reason to
believe the information could be used to the injury of the United States or to the advantage of any foreign
nation.

SPECIFICATION 15: the classi?ed record produced by a United States Army intelligence
organization, dated 18 March 2008 was information related to the national defense at the time of the
willful communication. Disclosure of the material would be potentially damaging to the United States.

7



0 0 35933

The more than one classi?ed memorandum produced by a United States government intelligence agency
was closely held by the United States government. PFC Manning had reason to believe the information
could be used to the injury of the United States or to the advantage of any foreign nation.

(Element Common to all speci?cations)

(2) Title 18, United States Code Section 793(e) was in existence on the dates alleged in
speci?cations Charge 11;

(3) the conduct in speci?cations Charge II occurred within the dates charged
by the Government. The conduct is speci?cation 3 of Charge II occurred within the dates charged by the
Government as excepted and substituted by the Court in its verdict.

3. CHARGE II, Speci?cations 13 - Fraud and Related Activity With Computers
1. PFC Manning?s plea established all of the elements of this offense except the following:

(1) PFC Manning knowingly exceeded authorized access on a Secret Internet Protocol Router
Network Computer;

(2) PFC Manning had reason to believe such infonnation so obtained, to wit: more than seventy-
?ve classi?ed United States Department of State (DOS) cables could be used to the injury of the United
States or to the advantage of any foreign nation; and

(3) l8 U.S.C. ?l030(a)( 1) was in existence on the dates alleged in speci?cation 13 of Charge II.

2. The Court applied the following de?nitions in accordance with the Court?s Instructions and its 18 July
2012 Ruling: Defense Renewed Motion: Dismiss Speci?cations 13 and 14 of Charge II Failure to State
an Offense (AB 218):

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

The term ?exceeds authorized access? means that PFC Manning accessed a computer with authorization
and used such access to obtain or alter information in the computer that PFC Manning is not entitled so to
obtain or alter. It is the knowing use of the computer by exceeding authorized access which is being
proscribed, not the unauthorized possession of, access to, or control over the protected information itself.
Restrictions on access to classi?ed information are not limited to code based or technical restrictions on
access. Restrictions on access to classi?ed infonnation can arise from a variety of sources to include
regulations, user agreements, and command policies. Restrictions on access can include the manner of
access.

The Court applied the same ?Reason to believe? de?nition applied for speci?cations Charge II, violations of 18 U.S.C. ?793(e) and Article 134, UCMJ.

The Court has taken judicial notice that Title 18, United States Code Section 103 1) was in existence
on the date alleged in the speci?cation.



0 0 35934

3. The Court ?nds beyond a reasonable doubt as follows:

(1) Between on or about 28 March 2010 and on or about 27 May 2010, PFC Manning knowingly
exceeded authorized access on a computer by knowingly introducing W-get, an unauthorized
program to his user account on the DCGS-A computer he used in the 2/ 1 0th Bde SCH: and by
using W-get to bypass the con?gured and authorized method of access and extraction of the seventy-?ve
classi?ed United States DOS cables from the NCD database. PFC Manning has expertise in automation
and Department of Defense Information Security. He was placed on notice that W-get was an
unauthorized program by Mr. Milliman prior to introducing W-get on the DCIGS-A computer. PFC
Manning was required to sign an Acceptable Use Policy (AUP) similar to the example in AR 25-2,
Appendix B. PFC Manning knew that Wget was not a game, music, or a movie. COL Miller tolerated
games, music, and movies on the DCIGS-A computer to enhance morale. PFC Manning never inquired
whether W-get was an authorized program on the DCIGS-A computer. Neither COL Miller nor anyone
else in PFC Manning?s supervisory chain told PFC Manning that W-get was an authorized program on
the DCIGS-A computer.

(2) PFC Manning had reason to believe such information so obtained, to wit: more than seventy-
?ve classi?ed United States DOS cables could be used to the injury of the United States or to the
advantage of any foreign nation; and

(3) 18 U.S.C. ?l030(a)(l) was in existence on the dates alleged in speci?cation 13 of Charge II.
4. CHARGE Speci?cations 1-4: Violation of a Lawful General Regulation:
1. The Court has taken judicial notice of AR 25-2, 24 October 2007.
2. The Court applied the following de?nitions to these offenses:

General regulations are those regulations which are generally applicable to an armed force and which are
properly published by a militaiy department.

PFC Manning may be found guilty of violating a general regulation only if the fact-?nder is satis?ed
beyond a reasonable doubt that the regulation was a general regulation.

When a general regulation prohibits certain acts, except under certain conditions, then the burden is on the
prosecution to establish by legal and competent evidence beyond a reasonable doubt that PFC Manning
does not come within the terms of the exceptions.

3. The Court ?nds beyond a reasonable doubt the following:

(1) That there was in existence a certain lawful general regulation in the following terms:
Speci?cation 1: paragraph Army Regulation 25-2, dated 24 October 2007;.
Speci?cation 2: paragraph Army Regulation 25-2, dated 24 October 2007;
Speci?cation 3: paragraph Army Regulation 25-2, dated 24 October 2007;
Speci?cation 4: paragraph Army Regulation 25-2, dated 24 October 2007;

(2) That PFC Manning had a duty to obey such regulation; and



35935

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

Speci?cation 1: between on or about 1 November 2009 and on or about 8 March 2010, PFC
Manning violated this lawful general regulation by attempting to bypass network or information security
system mechanisms.

Speci?cation 2: between on or about 11 February 1010 and on or about 3 April 2010, PFC
Manning violated this lawful general regulation by adding unauthorized software, W?get, to a
computer.

Speci?cation 3: on or about 4 May 2010, PFC Manning violated this lawful general regulation
by adding unauthorized software, W?get, to a computer.

Speci?cation 4: between on or about 11 May 2010 and on or about 27 May 2010, PFC Manning
violated this lawful general regulation by using an information system in a manner other than its intended
purpose by extracting 74,000 email addresses from the USFI-GAL and by maintaining the email

addresses on his private MAC computer.
2.

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

10

0 35936

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE MOTION TO
MERGE SPECIFICATIONS 5
AND 7 OF CHARGE II FOR
FINDINGS

V.

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: 30 July 2013



RELIEF SOUGHT
1. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 924(c), nequests this Court to merge Speci?cations 5 and 7 of
Charge II for ?ndings.
STANDARD
2. ?In a trial by military judge alone, the military judge may reconsider any finding of guilty at
any time before announcement of sentence.? R.C.M. 924(c).
DISCUSSION
3. The Government has conceded that the transmissions in Speci?cations 5 and 7 of Charge II
were one transmission. The Court has previously stated that the Defense may make a motion to
merge these speci?cations for ?ndings after ?ndings are armounced. See Appellate Exhibit 78,
Court Ruling on Defense Motion to Dismiss for Unreasonable Multiplication of Charges.
CONCLUSION

4. In light of the foregoing, the Defense requests this Court to merge Speci?cations 5 and 7 of
Charge II for ?ndings.

Respectfully submitted,



DAVID EDW
Civilian Defense Counsel

APPELLATE 61?-
PAGE

PAGE OF PAGES

0 35937

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE MOTION TO
MERGE SPECIFICATIONS 4
AND 6 OF CHARGE II FOR
FINDINGS

V.

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: 30 July 2013



RELIEE SOLJGHI

1. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 924(c), requests this Court to merge Speci?cations 4 and 6 of
Charge II for ?ndings.

STANDARD

2. ?In a trial by militaryjudge alone, the military judge may reconsider any ?nding of guilty at
any time before announcement of sentence.? R.C.M. 924(c).

DISCUSSION

3. The Government has conceded that the transmissions in Speci?cations 5 and 7 of Charge 11
were one transmission. The Court has previously stated that the Defense may make a motion to
merge these speci?cations for ?ndings after ?ndings are announced. See Appellate Exhibit 78.
Similarly, the taking of the information charged in Speci?cations 4 and 6 of Charge 11, which is
the subject of Speci?cations and 7 of Charge 11 was one transaction. PFC Manning took these
items at the same time. As such, the Defense requests that these speci?cations be merged as
well for ?ndings.

CONCLUSION

4. In light of the foregoing, the Defense requests this Court to merge Speci?cations 4 and 6 of
Charge 11 for ?ndings.

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Cotmsel

APPELLATF, EXHIBIT 67.7

PAGE
PAGE or mass

. . 35938

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE MOTION TO
v. MERGE AS UNREASONABLE
MULTIPLICATION OF
MANNING, Bradley E., PFC CHARGES FOR SENTENCING

U.S. Army,

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

DATED: 30 July 2013



RELIEF SOUGHT

1. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to United States v. Campbell,
71 M.J. 19 (C.A.A.F. 2012) and Rule for Courts Martial (R.C.M.) l003(c)( requests this
Court ?nd the below referenced speci?cations as an unreasonable multiplication of charges as
applied to sentencing.

STANDARD

2. The military judge has the discretion to merge offenses ?for sentencing purposes by
considering the Quiroz factors and any other relevant factors that lead the military judge to
conclude that the remedy of merger for sentencing is appropriate.? Campbell, 71 MJ. at 24,
citing United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001).

FACTS

3. PFC Marming has been found guilty of ?ve speci?cations of violating a lawful general
regulation, three speci?cations of conduct prejudicial to good order and discipline and service
discrediting, six speci?cations of communicating classi?ed information, ?ve specifications of
stealing or knowingly convening government property, and one speci?cation of knowingly
exceeding authorized access to a government computer, in violation of Articles 92 and 134 of the
Uniform Code of Military Justice (U.C.M.J.) 10 U.S.C. 892 and 934 (2010).

4. The Defense submits that the following four categories of speci?cations are an unreasonable
multiplication of charges (U MC) as applied to sentencing:

Categotxlz Article 134 (I8 U.S.C. 6 641) and Article 134 (18 U.S.C. 793(e))

(A) Speci?cations 4 and 5 of Charge II involving the database containing more
than 380,000 records belong to the United States government;

- 4

35939

(B) Speci?cations 6 and 7 of Charge II involving the CIDNE-Afghanistan database containing
more than 90,000 belonging to the United States governmentl;

(C) Speci?cations 8 and 9 of Charge 11 involving the United States Southern Command database
containing more than 700 records belonging to the United States government;

Categorv 2: Article 134 (18 U.S.C. 641) and Article 134 (18 U.S.C. 1030(a)(1))

(A) Speci?cations 12 and 13 of Charge II involving the Department of State Net-Centric
Diplomacy database containing more than 250,000 records belonging to the United States
government;

Categorv 3: Article 134 (18 U.S.C. 641 and 18 U.S.C. 5 1030(a)(1)) and Article 92

(A) Speci?cation 8 of Charge II involving the United States Southern Command database and
Speci?cation 2 of Charge involving a violation of a lawful general regulation by adding
unauthorized software to a Secret Internet Protocol Router Network computer;

(B) Speci?cation 12 of Charge II involving the Department of State Net-Centric Diplomacy
database and Speci?cation 3 of Charge involving a violation of a lawful general regulation by
adding unauthorized software to a Secret Internet Protocol Router Network computer;

(C) Speci?cation 16 of Charge II involving a portion of the United States Forces Iraq
Microsoft Outlook Sharepoint Exchange Server Global Address List belonging to the United
States government and Speci?cation 4 of Charge involving a violation of a lawful general
regulation by using an infonnation system in a manner other than its intended purpose.

DISCUSSION

5. The Court of Appeals for the Armed Forces (C.A.A.F.) in United States 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 to an UMC as applied
to sentence:

(1) Whether each charge and speci?cation is aimed at separate criminal acts,

(2) Whether the number of charges and speci?cations misrepresent or exaggerate the
accused?s criminality,

1 The Defense has ?led a motion to merge Speci?cations 4 and 6 of Charge 11 and also to merge Speci?cations 5
and 7 of Charge [1 for Findings.





0 35940

(3) Whether the number of charges and speci?cations unreasonably increase the
accused?s punitive exposure, or

(4) Whether there is any evidence of prosecutorial overreaching or abuse in the drafting
of the charges.

6. This Court has previously held pursuant to Campbell that:

None of the factors are pre-requisites. One or more factors may be suf?cient to
establish an UMC based on prosecutorial over-reaching. A singular act may
implicate multiple and signi?cant 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.

See Appellate Exhibit (AB) 78, citing Campbell, 71 M.J. 23, 24.

7. Using the Quiroz factors, this Court should ?nd that the above listed speci?cations of Charge
11 and constitute an unreasonable multiplication of charges for sentencing. The Defense will
address each category below:

a) Category 1: The listed speci?cations (4, 5, 6, and 7) involve conduct that essentially arose
out of the same transaction and were part of the same impulse. These speci?cations are not
aimed at separate criminal acts for sentencing purposes. In this case, PFC Manning
took the CINDE-I and CIDNE-A SIGACTS on the same day. The taking of the SIGACTs was a
necessary step in order to then subsequently give those SIGACTS to Wikileaks. The
Government conceded the transmissions in Speci?cations 5 and 7 were one transmission. See
AB 78. Additionally, the number of speci?cations misrepresents PFC Manning?s criminality.
The Govemment?s charging decision takes a single ongoing act of removing SIGACTS and
giving them to Wikileaks, and divides this conduct into four separate speci?cations. The
dividing of this single act into four speci?cations takes what should be a ten year offense and
makes it a forty year offense. The number of speci?cations unfairly increases PFC Manning?s
punitive exposure. Likewise, Speci?cations 8 and 9 involve conduct that arose out of the same
transaction and was part of the same impulse. In order to give the records from the United States
Southern Command database, PFC Manning had to take the records out of the T-SCIF. By
dividing this ongoing act into two separate speci?cations, the Government takes what should be
a ten year offense and makes it a twenty year offense and unfairly increases PFC Manning?s
punitive exposure.

b) Category 2: Speci?cations 12 and 13 involve conduct that arose out of the same
transaction and was part of the same impulse. These speci?cations are not aimed at
separate criminal acts for sentencing purposes. The taking of the records from the Department of
State Net-Centric Diplomacy database was a necessary step in giving these records to Wikileaks.
By dividing this ongoing act into two separate speci?cations, the Government takes what should



.

be a ten year offense and makes it a twenty year offense and unfairly increases PFC Manning?s
punitive exposure.

c) Category 3: Speci?cations 8 of Charge II and 2 of Charge 12 of Charge II and 3 of
Charge and 16 of Charge II and 4 of Charge involve either the use of unauthorized
software or of an information system in order to take records ?'om the United States Southern
Command database, Department of State Net-Centric Diplomacy database, and the United
States Forces Iraq Microsoft Outlook Sharepoint Exchange Server global address list.
PFC Marming used the unauthorized software of Wget in order to obtain the records
charged in Speci?cations 8 and 12 of Charge 11. He also used an information system in a
manner other than its intended purpose to obtain the records in Speci?cation 16 of Charge
II. These speci?cations are not aimed at separate criminal acts for sentencing

purposes.

8. This Court should determine that: Speci?cations 4, 5, 6, and 7 of Charge II constitute an
unreasonable multiplication of charges as applied to sentencing; Speci?cations 8 and 9 of Charge
II constitute an unreasonable multiplication of charges as applied to sentencing; Speci?cations

12 and 13 of Charge II constitute an unreasonable multiplication of charges as applied to
sentencing; Speci?cations 8 of Charge II and 2 of Charge 12 of Charge II and 3 of Charge
and 16 of Charge II and 4 of Charge constitute an unreasonable multiplication of charges
as applied to sentencing.

CONCLUSION
9. For the reasons articulate above, this Court should determine the following:

a) that Speci?cations 4, 5, 6, and 7 of Charge II constitute an unreasonable multiplication of
charges as applied to sentencing and accordingly merge them into one speci?cation;

b) that Speci?cations 8 and 9 of Charge II constitute an tmreasonable multiplication of
charges as applied to sentencing and accordingly merge them into one speci?cation;

c) that Speci?cations 12 and 13 of Charge II constitute an unreasonable multiplication of
charges as applied to sentencing and accordingly merge them into one speci?cation;

d) that Speci?cations 8 of Charge II and 2 of Charge 12 of Charge II and 3 of Charge
and 16 of Charge II and 4 of Charge constitute an unreasonable multiplication of charges as
applied to sentencing and accordingly merge the Charge speci?cations into the Charge II
speci?cations.

10. The current maximum punishment based upon the ?ndings of the court is to be reduced to
the grade of to total forfeitures of pay and allowances; to be discharged with a dishonorable
discharge; and to be con?ned for a period of 136 years. Under the Defense?s above request, the
maximum punishment would be to be reduced to the Grade of to total forfeitures of pay and
allowances; to be discharged with a dishonorable discharge; and to be con?ned for a period of 80



years.

. 35942

Respect lly submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel

. . 35943

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE MOTION FOR
APPROPRIATE RELIEF

UNDER R.C.M. l00l(b)(4)

V.

MANNING, Bradle E., PFC

U.S. Army,

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

DATED: 31 July 2013



RELIEF SOUGHT

1. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) lO0l(b)(4), requests this Court to limit the Govemment?s
sentencing evidence to its proper scope.

STANDARD

2. A military judge?s decision to admit or exclude evidence is reviewed for an abuse of
discretion. United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009).

DISCUSSION

3. R.C.M. l00l(b)(4) permits trial counsel ?to present evidence as to any aggravating
circumstances directly relating to or resulting from the offenses of which the accused has been
found guilty.? Evidence in aggravation includes, but is not limited to, evidence of ?nancial,
social, and medical impact on or cost to any person or entity who was the victim
of an o?ense committed by the accused and evidence of signi?cant adverse impact on the
mission, discipline, or ef?ciency of the command directly and immediately resulting from the
accused?s offense. Id.

4. ?The phrase ?directly relating to or resulting from the offenses? imposes a ?higher standard?
than ?mere relevance.? United States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995) (citing United
States v. Gordon, 31 M.J. 30, 36 (C.M.A. 1990)). ?Evidence is admissible on sentence which
shows ?the speci?c harm caused by the defendant.? Id. (quoting Payne v. Tennessee, 501 U.S.
808, 825 (1991)). ?Nevertheless, an accused is not ?responsible for a never-ending chain of
causes and Id. (quoting United States v. Witt, 21 M.J. 638, 640 n.3 (A.C.M.R. 1985),
pet denied, 22 M.J. 347 (C.M.A. 1986)). ?Moreover, appellant?s offense must play a material
role in bringing about the effect at issue; the military judge should not admit evidence of an
alleged consequence if an independent, intervening event played the only important part in

I APPELLATE EXHIBIT



PAGE REFERENCED:
PAGE PAGES

cum

0 35944

bringing about the effect.? United States v. Fisher, 67 M.J. 617, 621 (A. Ct. Crim. App.

2009)(quoting United States v. Witt, 21 M.J. 637, 640 (A.C.M.R. 1985).
5. As summarized in United States v. Stapp, 60 M.J. 795, 800-801 (A. Ct. Crim. App. 2004):

In sum, evidence of the natural and probable consequences of the offenses of
which an accused has been found guilty is ordinarily admissible at trial.
However, not every circumstance or consequence of misconduct may be admitted
into evidence during the pre-sentencing portion of court-martial. An accused is
not responsible for a never-ending chain of causes and effects. The standard for
admission of evidence under this rule is not the mere relevance of the purported
aggravating circumstance to the offense. A higher standard is required. The
evidence sought to be admitted must establish that the offense of which appellant
has been found guilty contributed to those effects which the government is trying
to introduce in evidence. Moreover, appellant?s offense must play a material role
in bringing about the effect at issue; the military judge should not admit evidence
of an alleged consequence if an independent, intervening event played the only
important part in bringing about the effect. cf Dep't of Army, Parn. 27-9,
Legal Services: Military Judges? Benchbook, para. 5-19 (1 April 2001)
(describing legal signi?cance of intervening cause).

Id. (internal citations omitted). See also United States v. Fisher, 67 M.J. 617, 620-621 (A. Ct.
Crim. App. 2009) . .evidence in aggravation includes evidence of the natural and probable
consequences of the offenses of which an accused has been found guilty, but not every
circumstance or consequence of misconduct is An accused is not responsible for a
never-ending chain of causes and effects. The evidence sought to be admitted must establish that
the offense of which appellant has been found guilty contributed to those effects which the
government is trying to introduce in evidence.?) (internal citations omitted).

6. In United States v. Hardison, 64 M.J. 279, 281-282 (C.A.A.F. 2007), C.A.A.F. described the
meaning of ?directly related? for the purposes of R.C.M. 1001

The meaning of ?directly related? under R.C.M. 1001(b)(4) is a function of botl1
what evidence can be considered and how strong a connection that evidence must
have to the offenses of which the accused has been convicted. Regarding the
strength of the connection required between admitted aggravation evidence and
the charged offense, this Court has consistently held that the link between the
R.C.M. 1001 evidence of uncharged misconduct and the crime for which the
accused has been convicted must be direct as the rule states, and closely related in
time, type, and/or often outcome, to the convicted crime. In regard to the
strength of the connection needed, it is important to note that judicial discretion to
admit uncharged misconduct under R.C.M. 1001(b)(4) was limited when the
President promulgated the 1984 edition of the Manual for Courts?Martial, United
States (1984 MCM), replacing the 1969 edition. The 1984 MCM replaced the
original rule for the admission of evidence at sentencing, which allowed ?any
aggravating circumstances? with the requirement that the evidence in aggravation



0 0 35945

be ?directly related.? See Manual for Courts?Martial, United States (1969 rev.


7. Case law has consistently held that evidence offered under R.C.M. l00l(b)(4) must also pass
the test of M.R.E. 403. See e. g. United States v. Hardtson, 64 M.J. 279, 281-282 (C.A.A.F.
second limitation is that any evidence that quali?es under R.C.M. l00l(b)(4) must
also pass the test of Military Rule of Evidence (M.R.E.) 403, which requires balancing between
the probative value of any evidence against its likely prejudicial

8. During the testimony of Brigadier General (BG) Robert Carr and Mr. John Kirchofer, the
Defense objected under both relevance and R.C.M. l00l(b)(4) to three general areas of
testimony that can be categorized as follows:

(1) Chain of Events Testimony;
(2) ?Could? Cause Damage Testimony; and
(3) Monetary Expenses and Use of Resources Testimony

The Defense believes that each of these general areas constitute impermissible testimony under
R.C.M. 401; 100l(b)(4) and 403.

gain of Events Testimony

9. BG Carr and Mr. Kirchofer?s testimony, as well as many of the Govemment?s other
witnesses? intended testimony, amounts to testimony of a never-ending chain of causes and
effects, i.e. that due to PFC Manning?s conduct, a certain event happened that triggered another
event that resulted in some remote harm. The testimony is nothing more than ?when this
happened, then that happened,? ?when that happened, this other thing happened? and ?when this
other thing happened, yet a ?nal thing happened.? PFC Manning is not responsible for a never-
ending domino effect. Actions and activities of independent actors intervened in the meantime
such that these fourth and ?fth order effects cannot be said to be properly within the embrace of
appropriate R.C.M. 1001 aggravation evidence. See United States v. Rust, 41 M.J. 472, 478
(C.A.A.F. 1995) (error to admit murder-suicide note where it cannot be said that murder was
directly related to or resulting from the conduct of the appellant).

10. Moreover, if the Government were to be permitted to advance an attenuated chain of events
that seek to place many of the ills of the world at PFC Manning?s feet, then the Court would have
to allow the Defense to rebut this with evidence that PFC Manning?s disclosures actually
effected meaning?il change in the world. For instance, PFC Manning?s disclosures have been
credited with empowering people in the Middle East and with precipitating ?Arab Spring.? See
thedailybeast.
terror. (?Some commentators have credited Manning?s leak with providing a spark for the
revolutions that toppled the governments of Egypt and Tunisia and triggered uprisings in
Bahrain, Libya, and Yemen, collectively known as the Arab Spring. Files leaked by Manning
disclosed a secret relationship between the U.S. government and President Ali Abdullah Saleh of
Yemen, to allow drone strikes inside the country where the United States was not in a declared
war. Another cable detailed the private investments and holdings of the Tunisian ruling
The Defense submits that allowing either the Government or the Defense to go down

0 0 35946

this road would be improper aggravation or mitigation and would run afoul of R.C.M. 1001(b)(4)
and R.C.M. 1001(c)(l)(B) respectively.

?Could? Cause Damage Testimony

1 1. BG Carr and Mr. Kirchofer testi?ed as to how PFC Manning?s misconduct ?could? have
caused damage. Speci?cally, they testi?ed the information could have revealed could
have added to the knowledge of our adversary as to how much information that the United States
knew or did not know; could have endangered individuals identi?ed as sources for the United
States; could have further traumatized family members of soldiers that were either killed or
injured during combat due to being named in the released could have impacted our
information sharing down to the lower levels because superiors would no longer trust individuals
at lower levels to protect classi?ed information; and that the damage from PFC Manning?s
misconduct could have been much worse if it were not for the IRTF. The Defense objected to
this testimony as not being relevant or proper under R.C.M. 1001(b)(4). The time for ?could?
cause damage testimony was during the merits phase of the trial. During sentencing, the
witnesses should be limited to testimony regarding whether PFC Manning?s conduct ?did? cause
damage.

12. If something ?could? happen, that means that it ?did not? happen. If it ?did not? happen (but
only ?could? happen), by de?nition, it cannot be directly related to or resulting from the
accused?s conduct. In other words, something that is directly related to or resulting from the
accused?s conduct is something that actually did happen, not something that could happen.

13. A court would not countenance ?could? evidence in sentencing in any case, nor would a trial
counsel even attempt to offer ?could? evidence in aggravation. For instance, if an accused is
convicted of drinking and driving, a trial counsel would not offer evidence that the accused could
have hurt someone; a trial counsel would offer evidence that an accused did hurt someone. In an
adultery case, a trial counsel would not offer evidence that the accused could have caused
damage to his family relationship; a trial counsel would offer evidence that an accused did cause
damage to his family relationship. In an assault case, a trial counsel would not offer evidence
that the accused could have caused a concussion; a trial counsel would offer evidence that an
accused did cause a concussion. This case should be no different. The fact that this case
involves classi?ed evidence does not change what can properly be admitted in sentencing i.e.
what PFC Manning?s actions caused, not what PFC Manning?s actions could have caused.

14. In addition to offering the speculative potential damage, the Government attempted to
smuggle inadmissible hearsay under the basis of the expert?s opinion. The Defense objected to
this testimony, and argued that the respective witnesses were ?fact? witnesses and not ?expert?
witnesses. Additionally, the Defense argued that the Government was simply trying to admit
inadmissible facts or data through BG Carr and Mr. Kirchofer. The Court determined that this
type of information was not admissible under M.R.E. 703 unless the Court determined that the
probative value in assisting the Court to evaluate the expert?s opinion substantially outweighs the
prejudicial effect of the inadmissible facts or data. The Defense maintains that the admission of
inadmissible fact or data is improper under M.R.E. 703 since the probative value of the
information does not substantially outweigh the prejudicial effect.

Monetary Expenses and Use of Resources Testimony

4

. . 35947

15. BG Carr and Mr. Kirchofer both testi?ed about the formation of the IRTF. Mr. Kirchofer
testi?ed in greater detail about the monetary and human resources expended in setting upon the
IRTF. Speci?cally, Mr. Kirchofer testi?ed that the IRTF obtained 75 computers and over 125
personnel to work in reviewing the disclosed information. Mr. Kirchofer also testi?ed that over
300 individuals transitioned through the IRTF during its 10 month existence. Finally, Mr.
Kirchofer testi?ed that the cost of the IRTF was approximately $6.2 million. The Defense
objected to this testimony as being improper under R.C.M. l00l(b)(4). The Defense argues that
the monetary expenses and use of resources testimony was not directly related to or resulting
from PFC Manning?s misconduct since the expense of the IRTF was based upon an independent,
intervening event Secretary of Defense Robert Gates? decision to set up a task force to research
the disclosures and detennine what mitigation steps may be necessary. See United States v.
Fisher, 67 M.J. 617, 621 (A. Ct. Crim. App. 2009)(testimony concerning the time devoted to
appellant?s court-martial and trial counsel?s use of this evidence in sentencing argument was
improper under R.C.M. 100l(b)(4)); United States v. Stapp, 60 M.J. 795, 800-801 (Army Ct.
Crim. App. 2004)(military judge erred when he allowed a witness to testify concerning the effect
of the court-martial itself upon the readiness of the company since the exercise of independent
discretion to court-martial a soldier is not properly attributable to appellant as aggravation
evidence).

16. The testimony from BG Carr and Mr. Kirchofer regarding monetary expenses and the use of
resources is not directly related to or resulting from PFC Manning?s conduct. The decision to
create the IRTF was the result of the independent discretion of the Secretary Robert Gates.
Secretary Gates established the IRTF in order to provide mitigation strategies, to identify
insensitivities to religion or cultural beliefs with the releases, to research issues that might cause
fractions with any coalition partner, and to provide notice of other possible releases. To provide
an example of how this testimony is improper, assume an accused vandalized a building with
spray paint. The costs of repainting the portion of the building vandalized would certainly
qualify as proper aggravation under R.C.M. l00l(b)(4). However, if the owner of the building
decided to repaint the whole building and hired an exterior designer to provide visual examples
of how the building might look depending upon the color chosen, this expense would not be
proper aggravation under R.C.M. l00l(b)(4). Similarly, if the building owner decided to expend
signi?cant resources in researching anti-graf?ti paint options to avoid a future vandalism
incident, such an expense would also not be proper aggravation under R.C.M. l00l(b)(4). In
each instance, the cost of the designer and the cost of researching anti-graf?ti paint would not be
directly related to or resulting from the accused conduct since the act of the accused did not play
a material role in bringing about the effect at issue. Instead, an independent, intervening event
played the only important part in bringing about the effect the owner decided to hire an exterior
designer or research anti-graf?ti paint. In the case at hand, the decision to establish the IRTF
and to expend $6.2 million was a result of an independent, intervening event and is not proper
aggravation under R.C.M. l00l(b)(4).

17. The Defense anticipates that many of the remaining Government witnesses will also offer
testimony that relates to the expenditure of ?nancial or human resources. These witnesses will
attempt to testify that these expenses were done as part of either the investigation of PFC
Manning?s misconduct or the organization?s response to PFC Manning?s misconduct. In either
instance, the testimony is improper since it is not ??the speci?c harm caused by the defendant.?

0 0 35948

United States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995) (quoting Payne v. Tennessee, 501 U.S.
808, 825 (1991)).
CONCLUSION

18. In light of the foregoing, the Defense requests this Court to determine that the proffered
chain of events testimony; ?could? cause damage testimony; and monetary expenses and use of
resources testimony is not proper aggravation evidence under R.C.M. 1001(b)(4). The Defense
requests that the Court disregard the improper testimony offered by BG Carr and Mr. Kirchofer.

Respectfully submitted,

ID EDWARD CO MBS

Civilian Defense Counsel

35949

UNITED STATES OF AMERICA
Government Response
to Defense Motion for
Appropriate Relief Under
RCM 1001(b)(4)

V.

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

1 August 2013

RELIEF SOUGHT
The United States respectfully requests that the Court deny the Defense Motion for
Appropriate Relief Under RCM 1001 (b)(4) (hereinafter "Defense Motion") because the
accused's misconduct directly contributed to the matters described in the testimony ofthe United
States' sentencing witnesses.
BURDEN OF PERSUASION AND BURDEN OF PROOF
"The trial counsel may present evidence as to any aggravating circumstances directly
relating to or resulting from the offenses of which the accused has been found guilty. Evidence in
aggravation includes, but is not limited to, evidence offinancial,social, psychological, and
medical impact on or cost to any person or entity who was the victim ofan offense committed by
the accused and evidence of significant adverse impact on the mission, discipline, or efficiency
of the command directly and immediately resulting from the accused's offense." Rule for
Courts-Martial (hereinafter "RCM") 1001(b)(4).
FACTS
The accused was convicted of causing intelligence to be "wrongfully and wantonly"
published in violation of Article 134, UCMJ, six specifications of misconduct in violation of 18
U.S.C. § 793(e), five specifications of misconduct in violation of 18 U.S.C. § 641, one
specification of misconduct in violation of 18 U.S.C. § 1030(a)(1), five specifications of
misconduct in violation of Article 92, UCMJ, and two specifications of conduct prejudicial to
good order and discipline in violation of Article 134, UCMJ. See Appellate Exhibit (hereinafter
"AE") DCXXIV.
WITNESSES/EVIDENCE
The United States does not request any witnesses be produced for this response. The
United States requests that the Court consider the testimony and Appellate Exhibits cited herein.

APPELLATE EXHIBIT ^ 1 2 .
PAGE REFERENCED;
PAGE
OF
PAQiS

35950

LEGAL AUTHORITY AND ARGUMENT
I. ACCUSED'S MISCONDUCT CONTRIBUTES TO AGGRAVATING CIRCUMSTANCES
The United States may present "evidence as to any aggravating circumstances directiy
relating to or resulting from the offenses of which the accused has been found guilty." RCM
1001(b)(4); see United States v. Zachary, 61 M.J. 813, 819 (A. Ct. Crim. App. 2005) (stating that
aggravating factors serve to increase the permissible punishment for a particular offense).
Evidence in aggravation includes, inter alia, "significant adverse impact on the mission,
discipline, or efficiency of the command" and impact or cost to any entity victimized by the
accused's offenses. See RCM 1001(b)(4); see also United States v. Metz, 34 M.J. 349, 351
(C.M.A.1992) (holding that uncharged conduct was admissible because it was "interwoven" in
the res gestae of the crime and provided information to determine criminal intent).
Aggravating evidence that directly relates to the offenses is admissible. See, e.g.. United
States V. Martin, 20 M.J. 227, 232 (C.M.A. 1985) (citing United States v. Vickers, 13 M.J. 403
(C.M.A. 1982). The phrase "directly relating to or resulting from the offenses" imposes a
"higher standard" than "mere relevance." See, e.g.. United States v. Gordon, 31 M.J. 30, 36
(C.M.A. 1990). Evidence that is "the natural and probable [consequence]" of the offense directly
relates to the offense. See United States v. Fisher, 67 M.J. 617, 620 (A. Ct. Crim. App. 2009)
(citing United States v. Stapp, 60 M.J. 795, 800 (A. Ct. Crim. App. 2004), aff'd, 64 M.J. 179
(C.A.A.F. 2006)). Consequential evidence is not admissible where "an independent, intervening
event played the only important part in bringing about the effect." Id. (citing Stapp, 60 M.J. at
800-01) (emphasis added). Consequential evidence that is closely related in time, type, or often
outcome of the crime is admissible, see United States v. Hardison, 64 M.J. 279, 281-82
(C.A.A.F. 2007), because it establishes a reasonable linkage between the offense and the
aggravating circumstances. United States v. Witt, 21 M.J. 637, 641 (A.C.M.R. 1985). A
reasonable linkage exists where the offense "contributed" to the aggravating circumstances. See
id. at 641 (finding neither a "but for" test nor facts sufficient to constitute proximate cause are
required to establish a reasonable linkage, thus a reasonable linkage is a lesser standard than a
"but for" and proximate cause test).
Aggravating evidence may be direct or circumstantial. See United States v. Harrod, 20
M.J. 777, 779 (A.C.M.R. 1985) (citing United States v. Pooler, 18 M.J. 832, 833 (A.C.M.R.
1984). Additionally, aggravating evidence may include the circumstances surrounding that
offense or the repercussions of the offense itself, see United States v. Gogas, 58 M.J. 96, 98
(C.A.A.F. 2003) (quoting Vickers, 13 M.J. at 406) thereby enabling the sentencing authority to
understand the gravity of the offense. See United States v. Stebbins, 61 M.J. 366, 373 (C.A.A.F.
2005). However, aggravating evidence is admissible only if its probative value outweighs its
prejudicial effect. See, e.g.. United States v. Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001) (stating that
sentencing evidence is subject to the balancing test under M.R.E. 403). The "military judge has
wide discretion" in applying this balancing analysis. See United States v. Yanke, 23 M.J. 144
(C.M.A. 1987).

35951

1L EFFECT ONUNITED STATES GOVERNMENT IS PROPERAGGRAVAT1NG
EVIDENCE
The accused has been convicted of compromising over700,000 United States
Government documents. The accused compromised documents from multiple United States
Government agencies; each ofthese agencies is an affected entity andavictim for national
securitypurposes under RCM1001(b)(4) where the effects are directly attributable to the
accused'smisconduct.
A. Eflects on National Security Are Proper Aggravation Evidence
RCM1001(b)(4) presents illustrative examples that constituteanonexhaustive list of
potential aggravating evidence. ^^^RCM1001(b)(4)(stating that evidence in aggravation "is
not limited to" the listed examples). The Drafters contemplated additional aggravating factors
for the determination ofpunishment. ^^^RCM 1004(c)(2)(A)(C). In particular, the Drafters
identified "knowingly creat[ing]agrave risk of substantial damage to the national security of the
United States,"or "knowingly creat[ing]agrave risk of substantial damage toa...function of
the United States. ,"RCM 1004(c)(2)(B),or"caus[ing] substantial damage to thenational
security ofthe United States
" R C M 1004(c)(2)(A)(C)RCM 1004(c)(2)(A)(C)presents
additional aggravating factors not explicitly listed in the non-exhaustive list ofexamples set forth
inRCM1001(b)(4). Although capital punishment is not at issue in this case,RCM 1004 serves
as an illustrative example ofthe types ofaggravating factors contemplated by the Drafters.
Thus, the impact of the accused'smisconduct on national security is properly admissible where it
is connected to the accused'sacts.
Impact may extend beyond the unit because that is but one type ofaggravating evidence
contemplated underRCM1001(b)(4)^^^^^^^^^^^^^.^^^^^^^^,27M.J.885 (A.C.M.R.
1989)(considering effect ofblackmarketing in relation to the objectives ofthe Agreement on the
Status ofUnited States Armed Forces in l^orea (SOFA)). In ^^^^^^,the Army Court ofMilitary
Review recognized that the"Army sends military forces into the sovereign nation ofthe
Republic of^oreafbrmutually beneficial reasons of national security,"andfbunda"reasonable
linkage" between the accused'smisconduct and the broader effects ofblackmarketing on the
victim entity, which was the command. ^^^^^^ at 887. Here, the accused has been convicted of
compromising hundreds ofthousandsofUnited States Government documents; the voluminous
compromises had widespread effects, to include the formation oftask forces and working
groups, and causation ofactual and potential harm to national security. Because the accused's
misconduct caused these effects, they are directly related and admissible underRCM1001(b)(4).
Additiona11y,the impact of the accused'sconduct extends beyond national security,and these
impacts are also proper aggravating evidence underRCM1001(b)(4).
proffered
testimony of Ambassador I^ozak,^^^AEDV.
B. Potential Harm Is Also Proper AggravationEvidence
The accused'screationofrisk and potential harm is proper aggravating evidence.
^^^^^^^^^^^^^^..^^^^,44 M.J.103,104 105 (holding that subjecting the victim to risk of
potential harm was admissible underRCM1001(b)(4));^^^^^^^^^^^^.^^.^^^^^,1999 WL

35952

293907 at ^2 (A.F.Ct. Crim App. 1999)(applyingB^^^.^tofindno abuse of discretion bythe
militaryjudge in instructing the members that they could considerpotential damage to national
security as an aggravating factor); ^^^^^^^RCM 1004(c)(2)(A) (C). In particular, the risk to
national security created by an intelligence analyst'smisconduct aids understanding the
circumstances surrounding the misconduct. ^^^^^^^^ at ^2; ^^^^,44 M.J.at104 (upholding
instruction for members to considerpotential threat to national security where the accused, an
intelligence analyst, was convicted offraudulent enlistment, makingafalse official statement,
anduseofcocaine)(citing^^^^^^^^^^^^^^^^,42M.J.479,483 (C.A.A.F 1995)).
Furthermore, evidence ofthe scope ofthe criminal dissemination ofunlawfiil information on the
Internet constitutes evidence ofpotential harm that is proper aggravating evidence. ^^^^^^^^^
^^^^^^v^^^^^^^,2013WL3238073 at^3(NMCtCrimApp2013)(concludingthat
distributingunlawful information to "countless unknown recipients" exacerbated "thegrave
natureofthecrtmes'');c^^^^^^^^^^^^^v^^^^^^,18MJ 832,833 (AC.MR 1984)(''Eviden
ofthe oflender^s attitude toward similar oflenses, past or future, is reliable circumstantial
evidence, and often the only available evidence, on this issue."). In^^^^^^^, the widespread
dissemination ofthe unlawful information onto the Internet created the potential fbrrepetition of
the crime, thus increasing the harm to the victims.
In the instant case, the accused'smisconduct created risk as opined by experts for the
United States.
Testimony ofBG(R)Carr;TestimonyofMr.^rchhofer;Testimony of
Ms.Dibble;TestimonyofMr.Feeley. This risk falls underRCM1001(b)(4)'spermissive "any
aggravating evidence directly relating to orresulting from the offenses ofwhich the accused has
been found guilty." RCM1001(b)(4). The broad scope ofthe accused'smisconduct effected
wide-ranging consequences,which include risk to the United States and its national security.
Testimony ofBG(R)Carr;TestimonyofMr.I^rchhofer;TestimonyofMs.Dibble;Testimony
ofMr.Feeley.
IILNONCRIMINALREVIEWSAREPROPERAGGRAVATING EVIDENCE
Evidencepertainingto the "'administiativeburden ofthe court-martial process'is
ordinarilynot admissible underRCM1001(b)(4)
" ^^^^^^^^^^^^^^^^^^^^^,67M.J.617,621
(A. Ct. Crim. App. 2009). "Theprocessingofacase, at least up until referral, is solelywithin
thegovemment'scontrol."^^.at621n.3. The United States is not offering evidence ofthe
expenses and actions associated with United States Army C1D,E^I, and Department ofState
Diplomatic Security Services Criminal Investigations, or costs associated with the accused's
prosecution.
In this case, the national security task forces and working groups conducted by the United
States Government to assess the consequences ofthe accused'smisconduct fall outside this
prohibition because these reviews were not conducted to determine criminal liability. ^^^^^^^^^
^^^^^^v..^^^^^^^^,35M.J.396,403 (C.M.A. 1992)(holdingthatadamage assessment was nota
criminal investigation for the purpose of determining whetherthe accused was entitled to an
Article31(b)waming because it was not coordinated with the criminal investigation); ^^^^^.^^
AELXXI1(differentiatingbetweenadamage assessment and criminal investigation); BATES
Numbers 00504636 00504637 (stating that the Information ReviewTask force will review
classified documents posted to WikiEeaks and that the review is "separate from, and unrelated
4

35953

to, any criminal investigations ofthe leaked information").^ These tasks forces and working
groups were established to mitigate immediatelythe harm to individuals and national security
caused by the accused. Moreover, costs incurred in the formation and execution ofareview
process resulting from an accused'smisconduct are proper aggravating evidence. ^^^^^^^^^
^^^^^^^^^^^^^,33MJ 946, 959 60 (NMCMR1991)(holdingproperadmissibility
evidence ofsearch costs resulting from dereliction of duty). Indeed, the Defense concedes that
costs associated with determining and repairing damage directly attributable to an accused's
misconduct are proper aggravation evidence.
Defense Motion^16("The costs ofrepainting
the portion ofthe building vandalized would certainly qualify as proper aggravation under
RCM1001(b)(4)")
Here, thefinancialcosts, lost opportunity costs, and resources expended to determine the
extent and effects ofthe intentional release ofclassified information are proper aggravating
evidence because theywere not conducted with an eye toward prosecution. ^^^Testimonyof
BG(R)Carr. The purpose ofthe reviews conducted by United States Government agencies was
to determine what information had been compromised and not to collect evidence fbraftiture
prosecution. Thus, the reviews were not criminal investigations. ^^^TestimonyofBG(R)Carr;
Testimony ofMr.^rchhofer. The criminal investigations stemmed directly from the accused's
misconduct and focused entirely on determining the criminality ofthe accused'smisconduct.
^^^TestimonyofSAMander;TestimonyofSAGraham;TestimonyofSASmith;Testimonyof
SA Shaver. Therefore, the resources and their circumstances constitute admissible aggravating
evidenceunderRCM1001(b)(4)
Furthermore, the reviews are distinct from corrective action taken bythe United States
Government such as implementingaprohibition on bumingaCD because that prohibition would
prevent future misconduct and is therefore not related to the accused'smisconduct. The Defense
asserts that the United States will present evidence akin to "a never-ending domino effect."
Defense Motion^9. The Defense fiirther avers that the United States will offer this type of
evidence:
However, ifthe owner ofthe building decided to repaint the whole
building and hired an exterior designer to provide visual examples
ofhow the buildingmight look dependingupon the color chosen,
this expense would not be proper aggravation under R.C.M.
1001(b)(4).Similarly,if the building owner decided to expend
significant resources in researching anti-graffiti paint options to
avoidafiiture vandalism incident, such an expense would also not
be proper aggravation under R.C.M. 1001(b)(4).
Defense Motion^16. In discovery litigation, the United States maintained that it would not
present evidence ofsubsequent remedial measures to prevent future criminal acts similarto those
ofwhich the accused has been convicted because it is not proper aggravation evidence. Such
acts are deliberate steps taken bythe United States to prevent future acts, and thus are not proper
' BATES Numbers 00504636-00504637 constitute Appendix A to the Information Review Task Force Damage
Assessment, of which the Court took judicial notice. See AE DLXXXVIII. Appendix A is a memorandum signed
by Secretary ofDefense Robert Gates.

35954

aggravation evidence in this matter. The United States made this determination that this type of
information is not proper in response to litigation concerning the discovery ofthe Department of
State "MitigationTeam" information. ^^^AECCXXII (noting that the "MitigationTeam" was
established "to address the policy,legal,security, counterintelligence, and information assurance
issues presented by the release ofthese documents").
IV MRE403AFPLICATION
Assuming,
the Court determines that the harm mitigation steps the United
States Government took to prevent immediate harm to individuals, entities, and national security,
are not proper aggravation evidence, the Defense should similarly be precluded from eliciting
evidence regarding any absence ofharm. Ifthe Court determines that the United States
Govemment'sacts to mitigate harm are an independent and intervening event that played the
only important part in bringing about the effect, then the Defense should be ntecluded from
eliciting evidence ofthe effects ofthose acts—namely,the absence ofharm. Topresent
evidence ofthe absence ofharm while simultaneously precluding evidence ofsteps to minimize
harm would be unfairlypre^udicial and misleading forthe fact finder. Thus, the Defense should
be precluded under Military Rule ofEvidence 403 from eliciting such testimony and making
related arguments.
CONCLUSION
The United States respectfullyrequests that the Court denythe Defense Motion for
Appropriate ReliefUnderRCM1001(b)(4) because the accused'smisconduct directly
contributed to the matters described in the testimony of the United States'sentencing witnesses.

^

^

^

^

^

ALEXANDERS^^^ELTEN
C1^T,JA
Assistant Trial Counsel

Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, onlAugust 2013.

fK/vlk
ALEXANDER S. VON ELTEN
CPT, JA
Assistant Trial Counsel

35955

APPENDIX A
UNCIASSIFIED//FOR OFFICIAL USE ONLY
SECRETARY OF DEFENSE
1OOO DEFENSE PENTAGON
WASHINGTON, DC a0301-lGOO

^jjQ

5 2010

MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMEN TS
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
UNDER SECRETARIES OF DEFENSE
ASSISTANT SECRETARIES OF DEFENSE
GENERAL COUNSEL OF THE DEPARTMENT 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 ASSES SMENT
DIRECTORS OF THE DEFENSE AGENCIES
DIRECTORS OF THE DOD FIELD ACTIVITIES
Subject: Task Force to Review Unauthorized Disclosure of Classified Information (FOUO)
(U//FOUO) On July 28,2010,1 directed the Director, Defense Intelligence Agency
(DIA) to establish an Information Review Task Force (IRTF) to lead a comprehensive
Department ofDefense (DoD) review of classified documents posted to the WikiEeaks
website (www.wikileaks.org) on July 25,2010, and any other associated materials.
Department ofDefense Components should provide DIA any assistance required to ensure
the timely completion of the review.
(U//FOUO) The IRTF will review the impact ofthe 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 of tlie National Counterintelligence Executive.
(U//FOUO) The IRTF will provide regular updates to the Office of the Secretary of
Defense (OSD) on its findings. A more comprehensive interim report will be provided as
the effort progresses. That report will include the following items:


(U//FOUO) Any released infonnation with immediate force protection implications;



(U//FOUO) Any released information concerning allies or coalition partners that may
negatively impact foreign policy;

-

-liiiii
w

UNCLASSIFIED//FOR OFFICIAL USE ONLY

104
APPELLATE EXHlBITj£iL
M=nnlngB_00504636

p ^ ^ ^ REFERENCED:

PAGE

OF

PAGES

35956

UNCLASSIFIED//FOR OFFICIAL USE ONLY
• (U//FOUO) Any intelligence reporting;
• (U//FOUO) Any released information concerning intelligence sources or methods;
• (U//FOU0) Any information on civilian casualties not previously released;
• (U//FOUO) Any derogatory comments regarding Afghan culture or Islam; and


(U/'/FOUO) Any related data that may have also have been released to WikiEeaks,
but not posted.

Afinalreport will be produced once all documents are assessed.
(U//FOUO) The IRTF 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) to conduct an assessment ofthe Department's procedures for accessing
and transporting classified information.
(U/flFOUO) This review is separatefi-om,and unrelated to, any criminal investigation of
the leaked informatioiL The assessment and review ofthe leaked documents is not intended
to, and shall not limit in any way, the ability of Department, Federal Bureau of Investigation
or any other federal criminal mvestigators, trial counsel and prosecutors to conduct
investigative and trial proceedings in si^ort of possible prosecutions under the Uniform
Code ofMilitary Justice or federal criminal provisions,

c:)
/pW^t;
cc:
Director of National Intelligence
Director, Central Mtelligence Agency
Assistant Secretary of State for Intelligence & Research
National Counterintelligence Center

UNCLASSIFIED/FOR OFFICIAL USE ONLY

ManningB_00504637

35957

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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Prosecution Response to
Defense Motion to Merge
Specifications 5 and 7 of
Charge I I for Findings
2 August 2013

RELIEF SOUGHT
The United States respectfiilly requests that the Court deny the Defense Motion to Merge
Specifications 5 and 7 of Charge II for Findings (hereinafter the "Defense Motion") under Rule
for Courts-Martial (hereinafter "RCM") 924(c) because the application of the Quiroz factors for
findings makes merger an inappropriate remedy. However, the United States does not object to
merging these specifications for sentencing.
BURDEN OF PERSUASION
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 RCM 905(c)(1). The burden of
persuasion on any factual issue the resolution of which is necessary to decide a motion shall be
on the moving party. See RCM 905(c)(2). Here, the defense bears this burden.
FACTS
The accused was convicted of causing intelligence to be "wrongfiilly and wantonly"
published in violation of Article 134, Uniform Code ofMilitary Justice (hereinafter "UCMJ"),
six specifications of misconduct in violation of 18 U.S.C. § 793(e), five specifications of
misconduct in violation of 18 U.S.C. § 641, one specification of misconduct in violation of 18
U.S.C. § 1030(a)(1), five specifications of misconduct in violation of Article 92, UCMJ, and two
specifications of conduct prejudicial to good order and discipline in violation of Article 134,
UCMJ. See Appellate Exhibit (hereinafter "AE") 624.
WITNESSES/EVIDENCE
The United States does not request any witnesses or evidence be produced for this
motion. The United States requests that the Court consider the evidence adduced at trial and the
referenced Appellate Exhibits.
LEGAL AUTHORITY AND ARGUMENT
The Court of Appeals for the Armed Forces (hereinafter "CAAF") in United States v.
Campbell, 71 M.J. 19 (C.A.A.F. 2012) endorsed the following non-exclusive factors, commonly
known as Quiroz factors in light of United States v. Quiroz, 55 M.J. 334, 339 (C.A.A.F. 2001),

APPELLATE E X H l B I T l ^ E L

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E

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35958

asaguideformilitaryjudges to considerwhen the defense objects that the United States has
um^easonablymultiplied the charges^
(1) Whether each charge and specification is aimed at distinctly separate criminal acts;
(2) Whether the number of charges and specifications misrepresent or exaggerate the
accused^s criminality;
(3) Whether the number of charges and specifications unfaiilyincrease the accused^s
punitive exposure; and
(4) Whether there is any evidence of prosecutorial overreaching or abuse in the drafting
ofthe charges.
^^^C^^^^^^^,71M.J.at24. None ofthe ^^^^^^^^^ factors are pre-requisites, meaning one ormore
factors may be sufficient to establish an unreasonable multiplication ofcharges (hereinafter
"UMC") based on prosecutorial ovei-ieaching^^^^^^^^^^,55MJat339 Asingularactmay
implicate multiple and significant criminal law interests, none necessarily dependent upon the
other. i^^^AE 78.
The CAAF in C^^^^^^^^recognised that "the concept ofUMC may apply differently to
findings than to sentencing." C^^^^^^^^, 71 M.J.at 23. Whenmeiging charges for sentencing
purposes, the Court insti^ctedmilitaryjudges, in their discretion, to employ the above ^^^^^^^^
factors and any other relevant factors as to whethermerger for sentencing is appropriate. .^^,at
24n.9; RCMI003(c)(l)(C) discussion; ^^^^^^^^^^^^^^v.^^^^^^^^, 68 M.J.378,386 (C.A.A.F.
2010) (statingthat "the application of the ^^^^^^^^ factors involvesareasonahleness
determination, much like sentence appropriateness"); ^^^^^^^^^,55 M.J.at399 (statingthat the
concept ofUMC for sentencing applies "when the militaryjudge,..determines that the nattire of
the harm requiresaremedythat focuses more appropriately on punishment than on findings").
Under Specifications5and7of Charge II, the accused was convicted ofhaving
unauthorised possession ofmore than 40 classified Significant Activities (hereinafter
"SIGACTs")ftomtheCombinedInformationDataNetworkExchange(hereinafter"C1DNE")
Iraq and Afghanistan databases, and tiansmittingthose classified records to WikiEeaks.
Charge Sheet. Thepartiesagiee that the accused transmifted the SIGACTsfrom both databases
at the same time.
Defense Motion, at^3. Although the transnussions occurred at the
same time, the crimes are separate hecause the crimes began on different days and the
stolen proncrty resided on different databases.
discussion,
Additionally,the
evidence adduced at trial proved that these specifications are aimed at separate and distinct
criminal acts. Nevertheless, since the accused transmitted these SIGACTs at the same time,
these specifications should merge for sentencing. ^^^^^^^^^^^,55M.J.at399(statingthatthe
concept ofUMC for sentencing applies "when the militaryjudge...determines that the nature of
the haim requiresaremedythat focuses more appropriately on punishment than on findings"),
L The evidence adduced at trial relatin^to the accused^sunauthori^ed possession of the
SIGACTsftom the C1DNE Iraq and CIDNE Afghanistan databases demonstrate that these
specifications aim at separate and distinct criminal acts.

35959

The evidence proved that the accused gained possession ofthe SIGACTsfrom their
respective databases in very different ways. As an intelligence analyst in Iraq, the accused was
conn^ectedtoaserver for the CIDNE Iraq database, makingthoscSIGACTscontained therein
readily accessible to him.
Prosecution Exhibit (hereinafter "PE")I16. On the other hand,
the accused did not have ready access to the SIGACTsftom the CIDNEAfgl^anistan database
because Sei^icemembers deployed to Iraq, includingmeinbers ofthe accused^sunit,were not
connected toasei^er for the CIDNE Afghanistan database.
Rather, the main servers to
the CIDNE Afghanistan database were located throughout Afghanistan, and the back up seiner
was located at the United States Central CommandHeadquartersinTampa, Florida.
Therefore, to possess the SIGACTsfrom the CIDNE Afghanistan database, the accused took it
upon himselftocont^ect to the back-up scivcrinTampa, Florida. The accused connected to the
back-up seiner inTampafroml-7January 2010. ^^^PEI52. ForSpecification6ofChaigeI1,
the evidence proved that the accuseds on7Januaiy^ 2010, betweenlL5L30^andlL52^27^
(^ulu time), completed exporting more than 90,000 SIGACTsfrom the CIDNE-A database.

SAShavertestified that he foundapassword-protected folder named "yada.tar.b^2.nc"
on the accused^spersonal computer. ^^^TestimonyofSA Shaver. This folderwas created
using "MCrypt",whichSA Shaver testified is an open source utilityto encrypt files that was
found on the accused^spersonal computer.
Four files were located within the
"yada.tar,b^2,nc" folder, one ofwhich was entitled "irq^events.csv" and anotherwas entitled
"afg events.CSV." The file "irq^events.csv" contained more than380,000 SIGACTsfrom the
CIDNE Iraq database.
The file "irq^events.csv" was last written on5January 2010,
which means5January2010was the last time the file "irq^evcnts.csv" was written to orupdated
on his personal computer. See id. The file "afg events.csv" contained more than 90,000
SIGACTsfiom the CIDNE Afghanistan database. The file "afg events.csv" was last written on
8January 2010, meaning the last time that file was v^tten to or updated on his personal
computerwas8January2010.
Siinplyput, the accused completed the theft of the SIGACTsftom the CIDNE Iraq
database on5January2010, thus this date marks the beginning ofthe unauthorised possession
for Specification4of Charge 1L Three days later, on8January 2010, the accused completed the
theft ofthe SIGACTsfrom the CIDNE Afghanistan database thi^s this date marks the beginning
ofthe unauthorised possession for Specification6of Charge IL Further, his theft ofthe
SIGACTsfrom the CIDNE Afghanistan database required the accused to take overt acts to
connect to the CIDNE Afghanistan database,adatabase that does not share information with the
CIDNE Iraq database. The accused stole the records employing different methods, ftom
different databases, and on different days. The theft ofthe SIGACTsftom the CIDNE Iraq
database consists of distinctly separate criminal acts than the theft ofthe SIGACTsfrom the
CIDNE Afghanistan database.
The accused gained possession of the SIGACTsftom the CIDNE databases in very
different ways. Further, the accused had unauthorised possession ofthe SIGACTsftom the
CIDNE Iraq database three days priorto his unauthorised possession ofthe SIGACTsftom the
CIDNE Afghanistan database. Although the accused eventually combined the records and

35960

transmitted these records toWikiLeaks at the same time, the criminal acts leading up to this
transmission highlight that these specifications are aimed at separate and distinct acts.
Two specifications cairyingamaximum punishment of20 years for the transmission of
more than 40 classified SIGACTsfrom the CIDNE Iraq and CIDNE Afghanistan databases
neither misrepresent or exaggerate the accused^scriminality,norunfairlyincrease the accused^s
punitive exposure. Under Speciftcations5and7ofCharge II, the accused has been convicted of
transmittingmore than 40 classified SIGACTstoWikiLeaks. Put another way, the accused is
facingamaximum punishment of one year confinement for everytwo classified documents he
compromised. This does not misrepresent or exaggerate the accused^scriminality,or unfairly
increase the accuscd^spunitiveexposurc^particularly since the criminal statute under which the
accused was convicted,I8U.S.C.^ 793(e), criminalizes the unauthorised disclosuieof one
classified document foramaximum sentence often years. Further, the evidence adduced at trial
proved that the CIDNE Afghanistan records transmifted bythe accused have been in the
possession ofthe enemies of our nation. The combined maximum punishment for these
specifications, 20 years, accurately reftects the giavity and scopeofthe convicted offenses of
transmittingmore than 40 classified SIGACTsto an uirauthori^ed person,
ILSincetheaccused transmitted theSIGACTs ftom theCIDNEh^ao and CIDNE Af^anistan
database at the same time, the United States does not object to the mer^in^ ofthese
specifications for sentencing.
Although the CAAF in C^^^^^^^^^ noted that "^ajsamafteroflogic and law,if an offense
is multiplicious for sentencing it must necessarily be multiplicious forfindingsas well^,j" the
Court furtherrecogni^ed how "the concept ofunreasonable multiplication ofcharges may apply
differentlytofindingsthan to sentencing."^^. at 23. The Court explained that courts may
implicate the ^^^^^^o^ factors differently to the charging scheme than to sentencing expostrre.
^^^.at23. The evidence adduced at trial supports that these specification merge for sentencing,
not for findings. The evidence proved that the accused downloaded the SIGACTsftom the
CIDNE Iraq database four days priortodownloadingthose ftom the CIDNE Afghanistan
database. The evidence also proved that the accused was in unauthorised possession ofthe
SIGACTsfi^om the CIDNE Iraq database three days priortohavingunauthori^ed possession of
those from the CIDNE Afghanistan database. Nevertheless, since the accused transmitted the
SIGACTsftom both databases at the same time, the remedy should focus moreon the accused^s
punitive exposure,which would be more proper for sentencing. ^^^^^^^^^^^^,55M.J.at399(the
concept ofUMC for sentencing applies "when the military judge...determines that the nature of
the harm requiresaremedythat focuses more appropriately on punishment than on findings").
CONCLUSION
The United States respectfiillyrequests that the Court deny the Defense Motion because
the application ofthe ^^^^^^^ factors forfindingsmakes merger an inappropriate remedy.
However, since the accused transmitted these records at the same time, the United States does
not object to the merging ofthese specifications for sentencing.

4

35961

^

JHUNTERWHYTE
CPT,JA
AssistantTrial Counsel
Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr.David
Coombs, Civilian Defense Counsel via electronic mail,on2August 2013.

^

JHUNTERWHYTE
CPT,JA
AssistantTrial Counsel

35962

UNITEDSTATES DF AMERICA

)

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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Prosecution Response to
Defense Motion to Merge
Specifieations4and6of
ChargeHfor Findings
2August20I3

RELIEFSOUGHT
The United States respectfully requests that the Court deny the Defense Motion to Merge
Specifications4and6of Charge 11 for Findings (hereinafter the "Defense Motion") under Rule
for Courts-Martial (hereinafter "RCM") 924(c)because the application ofthe ^^^^^^^^ factors
makes merger an inappropriate remedy,
BURDEN 0FPERSUAS10N
The burden ofproof on any factual issue the resolution of v^hich is necessary to decidea
motion shall be by preponderance ofthe evidence,
RCM 905(c)(1). The burden of
persuasion on any factual issue the resolution of which is necessaiy to decideamotion shall be
on the moving party.
RCM 905(c)(2). Here, the defense bears this burden.
FACTS
The accused was convicted ofcausing intelligence to be "wrongfiilly and v^antonly"
published in violation of Articlel34, Uniform Code ofMilitaiy^ Justice (hereinafter "UCMJ")^
six specifications of misconduct in violation ofl8U.S,C.^ 793(e), five specifications of
misconduct in violation ofl8U.S.C,^641,one specification of misconduct in violation of18
U,S,C,^ 1030(a)(l), five specifications of misconduct in violation of Article 92, UCMJ, and two
specifications of conduct prejudicial to good order and discipline in violation of Article134,
U C M J ^ ^ ^ Appellate Exhibit(hereinafter"AE") 624
WITNESSES^VIDENCE
The United States does not request anywitnesses or evidence be produced for this
motion. The United States requests that the Court consider the evidence adduced at trial and the
referenced Appellate Exhibits.
LEGALAUTHORITY AND ARGUMENT
The Court of Appeals for the Armed Forces (hereinafter "CAAF") in ^^^^^^^^^^^,^v.
C^^^^^^^^, 71 M.J. 19(C.A.A.F.2012) endorsed the following non-exclusive factors, commonly
knownas^^^B^^factorsinlightof^^^^^^^^^^^^^v^^^^B^^,55M.J.334,339(C
asaguide for militaiy judges to consider v^hen the defense objects that the United States has
unreasonably multiplied the charges^
(l)Whether each charge an^ specification is aimed at distinctly separate criminal acts;
A^PELLATEEX1^181T^^
^AGEREI^ERENCED^
^

^^^^

PAGES

35963

(2) Whether the number ofcharges and specifications misrepresent or exaggerate the
accused^s criminality;
(3) Whether the number of charges and specifications unfaiilyinciease the accused^s
punitive exposure; and
(4) Whether there is any evidence ofpiosecutoiialoveireaching or abuse in the drafting
ofthe charges.
^^^C^^^^^^^^^,71M.J.at24. None of the ^^^^^^^^ factors are prerequisites, meaning one or more
factors may be sufficient to establish an umeasonable multiplication ofcharges (hereinafter
"UMC") based on prosecutorial over-reaching. i^^^^^^^^^^^^^55M.J.at339, Asingularactmay
implicate multiple and significant criminal law interests, none necessarily dependent upon the
other^^^AE78,
L Specifications4and6of Charge II are aimed at distinctly separate criminal acts.
For Specification4ofChaige II, the evidence proved that the accused, an intelligence
analyst deployed to Iraq, had ready access to the SignificantActivities (hereinafter "SIGACTs")
ftom the Combined Information Data Network Exchange (hereinafter "CIDNE") Iraq database.
With such access, the accused completed exporting more than 380,000 SIGACTsftom the
CIDNE Iraq database between 04^39;13Cand04^54^04C(1raqtime)on3Januaiy 2010.^^^
Prosecution Exhibit (PE)116,
For Specification6of Charge II, the evidence proved that the accused did not have ready
access to the SIGACTsftom the CIDNE Afghanistan database because Servicemembeis
deployed to Iraq,including members of the accused^sunit, were not connected toaserver for the
CIDNE Afghanistan database. Rather, the main servers to the CIDNE Afghanistan database
were located throughout Afghanistan, and the back-up seiner was located at the United States
Central Command Headquarters in Tampa, Florida,
Therefore, to possess the SIGACTs
ftom the CIDNE Afghanistan database, the accused took it uponhimself to connect to the backup seiner inTampa, Florida, The accused connected to the back-up seiner inTampaftomI-7
January 2010, ^^^PE152,On7Januaiy 2010, betweenll^51^30^andll^52^27^(^ulutime),
the accused completed exporting more than 90,000 SIGACTsfrom the CIDNEAdatabase,

SA Shaver testified that he foundapassword-piotectcd folder named "yada.tar.b^2.nc"
on the accused^speisonal computer, ^^^TestimonyofSA Shaver. This folder was created
using "MCrypt",whichSAShavertestifred is an open source utility to encrypt files that was
found ontheaccused^spersonal computer.
Four files were located within the
"yada.tar.b^2.nc" folder, one of which was entitled "iiq^events.csv" and another was entitled
"afgevents.csv." The file "iiq^events.csv" contained more than 380,000 SIGACTsfrom the
CIDNE Iraq database,
The file "irq^events.csv" was last wriftenon5January 2010,
which means5January2010was the last time the file "irq^events.csv" was written to or updated
on his personal computer.
The file "afg events.csv" contained more than 90,000
SIGACTsftom the CIDNE Afghanistan database. The file "afg^events.csv" was last written on
8Januaiy 2010, meaning the last time that file v^aswiitten to or updated on his personal
computerwas8Januaiy2010.
Simply put, the accused completed the theft of the SIGACTsfiom the CIDNE Iraq
database on5Januaiy 2010. ^^^^^^^^^B^^^^^^,on8Januaiy 2010, the accused completed the

35964

theft oftheSIGACTsfiomtheCIDNE Afghanistan database. Further, his theft ofthe SIGACTs
from the CIDNE Afghanistan database required the accused to take overt acts to connect to the
CIDNE Afghanistan database,adatabase that does not share infbimation with the CIDNE Iraq
database. The accused stole the records employing different methods, fiom different databases,
and on different days. The theft ofthe SIGACTsfrom the CIDNE Iraq database consists of
distinctly separate criminal acts than the theft ofthe SIGACTsfiom the CIDNE Afghanistan
database.
IL Two specifications cairyingamaximum punishment of20 years forthe theft of nearly
500,000 SIGACTsfiom the CIDNE Iraq and CIDNE Afghanistan databases neither misret^resent
or exa^^eiate the accused^sciiminalitv^nor unfairly increase the accused^spunitive exposure.
Under Specifications4and6ofChaige 11, the accused has been convicted of stealing
nearly 500,000 SIGACTs. The sheer volume ofdata supports not merging these offenses.
AE 78 at5(concluding that the sheer volume of records weighs this ^^^^^^^^^ factor in favor of not
merging the offenses). Tosteal these records, the accused exported SIGACTsftom the CIDNE
databases on^^^ separate occasions. ^^^PE116(statingthatauser can export data ftom the
CIDNE database
one month atatime). Further, the evidence adduced at trial proved that
the SIGACTsftom the CIDNE Afghanistan database transmitted by the accused have been in the
possession ofthe enemies of our nation. ^^^PE153. The combined maximum punishment for
these specifications, 20 years, accurately reftects the gravity and scope ofthe convicted offenses
theaccused^stheftofneaily 500,000 SIGACTs
CONCLUSION
The United States respectfully requests that the Court deny the Defense Motion because
application ofthe^^^^^^factorsmakesmergeraninappiopiiateiemedy

JHUNTERWHYTE
CPT,JA
AssistantTrial Counsel

Icertifythatlserved or caused to be sei^edatrue copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on2August 2013.

J^^^N^^^YTE
CPT,JA
Assistant Trial Counsel

35965

UNITEDSTATESOF 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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Prosecution Response to
Defense Motion to Merge
as Unreasonable Multiplication
ofCharges for Sentencing
2August2013

RELIEFSOUGHT
The United States lespectft^lly requests that the Court deny,in part, the Defense Motion
to Merge as Unreasonable Multiplication ofcharges for Sentencing (heieinafterthe "Defense
Motion"). The United States agrees with the defense that Specificationl6ofChaige 11 and
Specification4ofChaige III should merge intoasingle,tenyear offense for sentencing.
However, for the remaining specifications which the defense requests that this Cotu^ merge,
except for Specifications5and7ofChaige 11 which are addressed inasepaiate filing, the
application ofthe ^^^^^^^.^ factors makes merger an inappropriate remedy,
BURDEN OFPERSUASION
The buiden of proof on any factual issue the resolution of which is necessary to decidea
motion shall be by preponderance ofthe evidence,
RCM 905(c)(1), The burden of
persuasion on any factual issue the resolution of which is necessary to decideamotion shall be
on the moving party.
RCM 905(c)(2). Here, the defense bears this burden.
FACTS
The accused was convicted ofcausing intelligence to be "wrongfully and wantonly"
published in violation ofArticle 134^ Unifbim Code ofMilitaiy Justice (hereinafter "UCMJ"),
six specifications ofmisconduct in violation ofl8U.S,C.^ 793(e), five specifications of
misconduct in violation ofl8U,S,C,^641^one specification of misconduct in violation of18
U,S,C,^ 1030(a)(1)^ five specifications of misconduct in violation of Article 92, UCMJ, and two
specifications ofconduct prejudicial to good order and discipline in violation of Article 134^
UCMJ,
Appellate Exhibit(hereinafter"AE") 624.
WITNESSES^VIDENCE
The United States does not request any witnesses or evidence be produced forthis
motion. The United States requests that the Court considerthe evidence adduced at trial and the
referenced Appellate Exhibits.
LEGALAUTHORITY AND ARGUMENT
The Court ofAppeals for the Aimed Forces (hereinafter "CAAF") in ^7^^^^^^^^^,^!^.
C^^^^^^^^^, 71 M.J, 19(C.A.A.F.2012) endorsed the following nonexclusive factors, commonly

^^PELLATEEX^181T^^
^AGEREPERENCED^
^^GE
OP
P^^^^

35966

known as the Quiroz factors in light of United States v. Quiroz, 55 M.J. 334, 339 (C.A.A.F.
2001), as a guide for military judges to consider when the defense objects that the United States
has unreasonably multiplied the charges:
(1) Whether each charge and specification is aimed at distinctly separate criminal acts;
(2) Whether the number of charges and specifications misrepresent or exaggerate the
accused's criminality;
(3) Whether the number of charges and specifications unfairly increase the accused's
punitive exposure; and
(4) Whether there is any evidence of prosecutorial oveneaching or abuse in the drafting
of the charges.
See Campbell, 71 M,J. at 24. None of the Quiroz factors are pre-requisites, meaning one or more
factors may be sufficient to establish an umeasonable multiplication of charges (hereinafter
"UMC") based on prosecutorial over-reaching. See Quiroz, 55 M.J, at 339, A singular act may
implicate multiple and significant criminal law interests, none necessarily dependent upon the
other, & g AE 78.
The CAAF in Campbell recognized that "the concept of UMC may apply differently to
findings than to sentencing." Campbell, 71 M.J. at 23. When merging charges for sentencing
purposes, the Court instructed militaiy judges, in their discretion, to employ the above Quiroz
factors and any other relevant factors as to whether merger for sentencing is appropriate. Id, at
24, n,9; RCM 1003(c)(1)(C) discussion; United States v. Anderson, 68 M.J. 378, 386 (C.A.A.F.
2010) (stating that "the application of the Quiroz factors involves a reasonableness
deteimination, much like sentence appropriateness"); Quiroz, 55 M.J, at 399 (stating that the
concept of UMC for sentencing applies "when the military judge.. .determines that the nature of
the harm requires a remedy that focuses more appropriately on punishment than on findings"),
I, This Court should not merge the specifications of 18 U.S.C. $ 641 violations with those of 18
U.S,C, § 793(e) violations, specifically Specifications 4 and 5 of Charge II. Specifications 6 and
7 of Charge 11, or Specifications 8 and 9 of Charge II (collectively the "Category 1
Specifications"), for sentencing purposes because each of the Quiroz factors makes merger an
inappropriate remedy.
Each of the Quiroz factors makes merger of the Category 1 Specifications an
inappropriate remedy. The criminal acts in the Category 1 Specifications are separate and
distinct, and the number of charges and specifications do not misrepresent or exaggerate the
accused's criminality, or unfairly increase the accused's punitive exposure,
A, The theft ofthe records in Specifications 4, 6, and 8 of Charge II and the ti-ansmission
of those records in Specifications 5, 7, and 9 of Charge Hare aimed at separate and distinct
criminal acts.
For Specification 4 of Charge II, the evidence proved that, in early January 2010, the
accused began exporting the Significant Activities (hereinafter "SIGACTs") spanning six years
ft om the Combined Information Data Network Exchange (hereinafter "CIDNE") Iraq database in

35967

30-day increments. ^^^PElI6(statingthatauser can export data from the CIDNE database
one month atatime). Put another way,the accused manually exported the CIDNE Iraq
SIGACTsonl44 separate occasions. The accused completed exporting more than 380,000
SIGACTsfiom theCIDNEIdatabase between 04:39:13Cand04:54:04C(Iiaqtime)on3
Jantiaiy2010.
SAShavertestified that he foundapasswoid-piotected folder named "yada,tai,bz2.nc"
ontheaccused'spersonal computer, i^^^TestimonyofSA Shaver, This folder was created
using "MCiypt",whichSAShavertestified is an open source utility to encrypt files that was
found ontheaccused'spersonal computer,
Four files were located within the
"yada.tai.bz2.nc" folder, oneofwhich was entitled "iiq^events.csv." The file "irq^events.csv"
contained more than 380,000 SIGACTsfiom the CIDNE Iraq database.
The file
"iiq^events.csv" was last written on5January2010^meaning the last time the file was wiiftcn to
or updated was5January 2010.
For Specification5of Charge II, the evidence proved that, on 30 January 2010, the
accused created the above folder entitled "yada.tai .bz2.nc" where he stored the file containing
more than380,000 SIGACTsftom the CIDNE Iraq database. ^^^TestimonyofSA Shaver.
Priorto forensically wiping his personal computer on31Januaiy 2010, the accused transmifted
those records to WikiEeaks. ^^^Testimony o f M i , Johnson; PE 125.
For Specification6of Charge 11, the evidence proved that the accused completed
exporting more than 90,000 SIGACTsfiom the CIDNE Afghanistan database between
1L5L30^andl1:52:27^(^ulutime)on7Januai^2010.^^^PE116.Theaccusedmanually
exported the CIDNE Afghanistan SIGACTsin30day increments on144scpaiate occasions.
^^^PEI16(statingthatauser can export data from the CIDNE database
one month ata
time). SAShavertestified that one ofthe files contained within the "yada.tar,bz2.nc" folder was
named "afg evcnts,csv,"^^^TestimonyofSA Shaver, The file "afgevents,csv" contained
more than 90,000 SIGACTsfiom the CIDNE Afghanistan database.The file "afg^events.csv"
was last wiiftenon8January 2010, meaning the last time the file was written to or updated was8
January 2010.
For Specification7of Charge II, the evidence proved that, on 30 January 2010, the
accused created the above folder entitled "yada.tai .bz2.nc" where he stored the file containing
more than 90^000 SIGACTsfiom the CIDNE Afghanistan database.
Priorto forensically
wiping his personal computer on31Januaiy2010,the accused transmitted those records to
WikiEeaks. i^^^Testimony ofMr, Johnson; PE 125,
For Specification8of Charge II, the evidence proved that, upon returning from leave on
5March 2010, the accused unsuccessftilly aftempted to manually download the Detainee
Assessment Briefs (hereinafter "DABs") ftom the United States Southei^ Command (hereinafter
"USSOUTHCOM")database i^^^PE82;,^^^^^^.^^TestimonyofSAShaver(testifyingthatthe
accused attempted to download the DABsusingaiightclick save method as an ordinary user on
5March2010and that the code "000" on PE 82 means that the download was unsuccessftil).
Two days later, on7Maich 2010, the accused downloaded more than 700 DABs fiom the

35968

USSOUTHCOM database with the software, WGET.^^^PE83;TestimonyofSAShaver.The
accused subsequently tiansfeired the records to his personal computer.
For Specification9of Charge II, the evidence proved that the accused inquired about
how valuable thcDABs would be to WikiEeaks, to which he was told "quite valuable."i^^^PE
123at56. I^nowing that, on8Maich 2010, the accused then transmitted those records to
WikiLeaks^^^PE123at56
The defense, for the second time, argues the theft wasa"necessaiy step" forthe accused
to transfer those records toWikiLeaks.
Defense Motion, at^7(a);.^^^^^^.^^^AE 78,at5
(noting the "defense argument that each violation of18U.S.C.^641 was simplythe^fiist step'
inaviolationofl8U.S.C,^ 793(e)"), As previously foreclosed by this Court, this argument
"has been discounted by the appellate courts in the context oflaiceny and false claims
convictions"^^(citing^^^^^^^^^^^^^vC^7^^^^^^^^,2003
(unpublished)). Appellate courts continue to discountthis argument for sentencing purposes,
^^^^^^^^^^^^^^^i^^^^^^^,2013WL 1850867at2-3(A.C.CA.2013)(upholdingthemilit
judge'sdecision not to mergealaiceny offense withafalse claim offense for sentencing because
"larceny is separate and distinct ftom^theappellant'sjfalse claim, as collecting unauthorized
fimds ftom the United States lequiiesaspecific intent to peimanently deprive").
In
the appellant was charged with stealing thousands ofdollars by submitting
ftaudulent travel vouchers that refiectedinfiated lodging expenses based on fabricated lease
agreements. At trial, the defense counsel requested to merge the larceny charge, false claim
charge, and conduct unbecoming charge relating to the use ofacoworker'speisonal information
forthe pui^oseof sentencing. Instead, the militaryjudge merged the false official statement
charges with the conduct unbecoming charges. On appeal, the appellant sought to merge the
larceny charge, false claim charge, and conduct unbecoming charge relating to the use ofacowoikei'spersonal infbimation on the fabricated lease agreements. The appellate court denied,
the request to merge the conduct unbecoming charge with the other charges because
"^ajlthough the use ofher co-worker's personal infoimationfoimed part ofthe foundation for the
false claim, this specification addressed the separate act ofinvolving an unwitting partner ina
criminal entei^iise, and therefore lefiectsadistinct set of activities." 7^,at3, Similarly,here,
although stealing the records may have eventually formed pai^ ofthe foundation forthe
subsequent transmission, both acts refiectadistinct set of activities.
During pretrial proceedings, this Court held that the CategoiylSpecifications allege
separate and distinct acts.
AE 78,at5(finding that "^t^hel8U.S.C.^641 offenses are
aimed at the theft of government property...while the gravamen of the 18U.S.C.^ 793(e)
offenses is the transmittal ofnational defense infbimation to unauthorized persons"). This Court
coirectly reasoned that, as in the C^^^^^^^case,"the crime oftheft of government records can
be complete whether or not the accused willftilly^communicated...^orj transmitted'the records
to persons not entitled to receive them." 7^,at5.
The CAAF also declines to find charges ofdistinct criminal acts multiplicious, even
where the acts, asawhole,representasingular act. ^^^C^^^^^^^,71M.J.at22, InC^^^^^^^,
the appellant wasanurse who was convicted of entering ftaudulent physician orders intoa

35969

machine that dispensed medication and then stealing that medication. The appellant was
convicted of falsely stating that he hadaphysician'soidei,wrongful possession of that
medication, and laiceny. The defense counsel requested that the militaryjudge merge the
possession charge with the larceny chaige^^^^^^^^^^,which the judge denied. On appeal,the
Court affiimed that the criminal acts were sepaiate and distinct for findings, and reasoned as
follows:
In essence, the transactions at the ^dispensings machine may have
eachiepiesentedasingularact,^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
.^^^^^^^^^^^^^^^^^^^^^^^^i^^^^^^^B^.^^.^,nonenecessaiilyde^^
theothers. For instance, inthiscasetheevidenceshowedthat
Appellant falsely indicated in the ^dispensingj machine that he had
the proper authority to retrieve the pai^icular medication when in
fact he had no such authority. This offense was complete whether
or not Appellant actually had the machine dispense the medication.
Also, theoretically, after indicatinghehadpioper authority and
after forming the requisite specific intent to steal. Appellant could
nonethelesshave changed hismindiegaidinghisintent to steal
after themachinedispensedthemedications. Hecould, at that
point, have decided to tuin the medications over to proper
authority and avoided wiongftilly possessing the property.
.^^,at24-5(emphasis added), Similarly^heie, the accused could have stolen the SIGACTsand
then he could have chosen not to transmit them to WikiEeaks,
In C^^^^^^, the militaiy judge did merge the above o f f e n s e s T h e
military judge reasoned that the false official statement, laiceny,andwiongful possession
"essentially arose out ofthis same transaction and were part ofthe same impulse." ^^,at22.
Here, the accused'stheft and transmission did not arise out of the same transaction and certainly
were not part ofthe same impulse. In C^^^^^^^^, the criminal acts forming the basis ofthe three
offenses all took place inashort amount oftime, consecutive to one another. The appellant
entered theftaudulentphysician'sorder into the dispensing machine, which promptly dispensed
medication into his wrongftil possession.
Here, for Specification4of Charge II charging violations ofl8U.S.C.^641,the
evidence proved that the accused completed manually exporting more than 380,000 SIGACTs
fiom the CIDNEIdatabaseon3January 2010. For Specification6of Charge II,the accused
completed exporting more than 90,000 SIGACTsftom the CIDNE-A database on7January
2010. SA Shaver testified that he fbundafile entitled "iiq^events.csv" on the accused's
personal computer contained more than 380,000 SIGACTsftom the CIDNE Iraq database.
The file "irq events.csv" was last v^ittenon5January 2010, which means5January 2010
was the last time the file "iiq^events.csv" was written to or updated on his personal computer,
SA Shaver testified that he fbundafile entitled "afg events,csv" containing more than
90,000 SIGACTsfrom theCIDNEAfghanistandatabase The file "afg^eventscsv"was last
written on8Januaiy2010,meaning the last time that file was wriften to or updated on his
personal computer was8January 2010,

35970

For Spccifications5and7ofChargc I I charging violations ofI8U.S.C.^ 793(e), the
evidence proved that the accused transmitted the records originating fiom two separate and
distinct classified databases toWikiLeaks prior to forensically wiping his personal computer on
31 January 2010, ^^^TestimonyofMr. Johnson; PE 125.
For Specification8ofCharge II, the evidence proved that the accused stole the records
on7Maich2010after unsuccessftilly attemptingto download theDABs two days earlier. For
Specification9ofCharge II,after confiiming with Julian Assange that the DABs would be
valuable, the accused transmitted the records to WikiLeal^s.
Unlil^e in C^^^^^^^, here, the offenses at issue did not take place concurrently or ina
matter of seconds. Instead, the evidence proved that the accused stole the records and, ^^^^
eventually transmitted the records to WikiEeaks. ^^^PE30(admitting to Adrian Lamo
that he sorted and compressed the data before transmitting it toWikiLeaks). Further, the accused
fbimedasepaiate criminal intent for the theft offenses than for the transmission offenses.
Further, the theft and transmission are not pait of one transaction. In
the militaiy
judge merged the conduct unbecoming charge relating to the use ofaco-woiker'spersonal
information inafabiicated lease agreement with the false official statement charge relating to
signing fabricated lease agreements for sentencing. ^^^^^^^^,2013WL 1850867,at2, The
fabricated lease agreement included the co-woikei'speisonal information, thereby consisting of
one transaction for UMC pui^oses for sentencing. Here, the theft and the transmission aie not
part of one transaction. Instead, the accused stole the records and then engaged inasepaiate
criminal act when he later chose to transmit those records toWikiLeaks.
B. 7^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^.^^^^^^^^.^^^^^^^^
^^^^^.^^^^.^^B^^^^^^^^^^^,^^^^^^^^^^^^^^^^^^^.^^^^^^^^^

The CAAF in C^^^^^^^^^ upheld the military judge'sdecision to merge the offenses for
sentencing because not doing so "might have exaggerated Appellant'scriminal and punitive
exposure in light of the fact that, ftom Appellant'sperspective, he had committed one act
implicating three separate criminal pui^oses."7^, at 25, Here, in contrast with C^^^^^^^^^, the
numberof charges and specifications do not misrepresent or exaggerate the accused's
criminality,or unfairly increase the accused'spunitive exposure. The accused has been
convicted of stealing nearly 500,000 SIGACTsfiom two sepaiate and distinct classified
databases and then^ days later, transmitting several of those classified records toWikiLeaks. The
sheer volume ofdata supports not merging these offenses. i^^^AE78,at5(concludingthatthe
sheer voltimc of records weighs this ^^^^^^^ factor in favor ofnot merging theoftenses), Tosteal
these records, the accused exported SIGACTsfiom the CIDNE databases on^^^ sepaiate
occasions. Further, the evidence adduced at trial proved that the records transmitted by the
accused have been in the possession ofthe enemies of our nation. The accused'sciiminal acts
arc far more serious, both in scope and giavity,than those in C^^^T^^^^^, The combined
maximum punishment forthese specifications,40 years, accurately reftects the giavity and scope

35971

of the accused's theft of neariy 500,000 SIGACTs from two separate and distinct classified
databases and then, days later, transmitting several of those classified records to WikiLealcs,
11, This Court should not merge Specifications 12 and 13 of Charge II (collectively the
"Category 2 Specifications") for sentencing purposes because each of the Quiroz factors makes
merger an inappropriate remedy.
Each of the Quiroz factors makes merger of the Category 2 Specifications an
inappropriate remedy. The criminal acts in the Category 2 Specifications are separate and
distinct, and the number of charges and specifications do not misrepresent or exaggerate the
accused's criminality, or unfairly increase the accused's punitive exposure.
A. 77?^ evidence adduced at trial proved that the theft of the records in Specification 12
of Charge II and the subsequent transmission of those records in Specification 13 of Charge II
are aimed at separate and distinct criminal acts.
For Specification 12 of Charge II, the evidence proved that, from 28 March 2010 to 9
April 2010, the accused connected to the Department of State firewall more than 700,000 times.
See PE 159. During this time, the accused employed WGET to download more than 250,000
cables from the Net-Centric Diplomacy (hereinafter "NCD") database webserver. See
Testimony of SA Shaver (testifying that the accused stored an automated WGET script used to
download cables from the NCD database webserver on the accused's SIPRNET computer). On
28 March 2010, the accused systematically began stealing the downloaded cables by transferring
them, in batches, to his personal computer. See PE 127, lines 36-48. The accused completed his
theft of more than 250,000 cables on 10 April 2010. See id, at line 48.
After stealing the cables, the accused sorted and compressed the data into a Comma
Separated Value (hereinafter "CSV") file, and encoded the cables in Base64 format, which
compacts the data and makes it easier to transport. See Testimony of Mr, Johnson (testifying that
the accused stored a script on his personal computer that he used to convert infoimation from a
cable into Base64 CSV foimat); see also Testimony of SA Shaver (testifying that the CSV
format makes it easier to move around data and Base64 compacts the data); see also PE 30
(admitting to Adrian Lamo that he sorted and compressed the data before transmitting it to
WikiEeaks). Then, the accused transmitted those cables to WikiEeaks.
During the pretrial stage, this Court held that the Category 2 Specifications allege
separate and distinct acts. See AE 78, at 6 (finding that "[t]he 18 U.S.C. § 641 offense is aimed
at the theft of government property...while the 18 U.S.C. § 1030(a)(1) offense requires the
transmittal of classified infoimation to unauthorized persons"). This Court conectly reasoned, as
in the Campbell case, that the crime of theft of government records can be complete whether or
not the accused willfully transmitted the records to persons not entitled to receive them. Id, at 6,
The evidence adduced at trial proved that the accused's theft of more than 250,000 cables
is separate and distinct from his subsequent transmission. The accused stole the cables over a
two week period, from 28 March 2010 to 10 April 2010, After stealing the cables, the accused
packaged and catalogued the cables. Afterwards, the accused chose to transmit those cables to

35972

WikiEeaks. As stated above, although the theft may have eventually formed part of the
foundation for the subsequent transmission, both acts reflect a distinct set of activities. See
Roosa, 2013 WL 1850867 at 3.
B. The number of charges and specifications do not misrepresent or exaggerate the
accused's criminality, or unfairly increase the accused's punitive exposure.
The number of charges and specifications do not misrepresent or exaggerate the accused's
criminality, or unfairly increase the accused's punitive exposure. The accused has been
convicted of stealing more than 250,000 Department of State cables from a classified database
and transmitting several ofthose classified records to WikiEeaks. The sheer volume of data
supports not merging these offenses. See AE 78, at 5 (concluding that the sheer volume of
records weighs this Quiroz factor in favor of not merging the offenses). Further, the evidence
adduced at trial proved that a portion of the cables transmitted by the accused have been in the
possession of the enemies of our nation. See PE 153(a). The combined maximum punishment
for these specifications, 20 years, accurately reflects the gravity and scope of the convicted
offenses of stealing more than 250,000 cables from a classified database and transmitting those
records to WikiEeaks.
III. This Court should not merge Specification 8 of Charge II with Specification 2 of Chai ge III
or Specification 12 of Charge II and Specification 3 of Charge III (collectively "Category 3
Specifications") for sentencing purposes because each of the Quiroz factors makes merger an
inappropriate remedy.
Each of the Quiroz factors makes merger ofthe Category 3 Specifications an
inappropriate remedy. The criminal acts in the Category 3 Specifications are separate and
distinct, and the number of charges and specifications do not misrepresent or exaggerate the
accused's criminality, or unfairly increase the accused's punitive exposure.
A. The evidence adduced at trial proved that the theft of the records in Specifications 8
and 12 of Charge Hand the regulatory violations in Specifications 2 and 3 Charge III,
respectively, are aimed at separate and distinct criminal acts.
For Specification 8 of Charge II and Specification 2 of Charge III, the evidence proved
that, sometime before 7 March 2010, the accused added unauthorized software, WGET, to his
SIPRNET computer. After adding WGET to his SIPRNET computer, the accused then had to
learn how to program WGET to operate. See Testimony of SA Shaver. The accused
downloaded the WGET help output file to determine how to operate WGET, See id; see also PE
189. The accused also searched how to make WGET operate faster, after he unsuccessfully
attempted to manually download the DABs on 5 March 2010. See PE 157, On 7 March 2010,
the accused downloaded more than 700 DABs from the USSOUTHCOM database and
subsequently transfen ed the records to his personal computer. The act of adding WGET to his
SIPRNET computer and the act of stealing DABs are separate and distinct. Army Regulation
25-2 criminalizes the act of introducing unauthorized software on a SIPRNET computer; the
purpose being to protect the infoimation system. That offense was committed when the accused
uploaded WGET onto his computer sometime before 7 March 2010. But then, after adding
8

35973

WGET to his computer, the accused had to learn how WGEToperated and what script to wiite to
steal the DABs. Specification8ofChaige II criminalizes the act of stealing United States
Government property; the purpose being to protect government property. Although adding
WGET to his computer may have eventually formed part ofthe foundation for the subsequent
theft, it was the accused'suseofWGET that ultimately led to the theft. ^^^C^^^^^^,71M,J,at
24 25 (recognizingthatasingular act may implicate multiple and significant criminal interests
not dependent on the others).
For Specification I2ofChaige II, as explained above, the accused stole more than
250,000 cables overatw^o week period, ftom 28 March 2010tolOApril 2010, ^^^^^^B^.
Specification3of Charge IIL on the other hand,relates to when the accused reintroduced
WGET to his SIPRNET computerin early May 2010.^^^ Charge Sheet. In early May 2010,
after stealing more than 250,000 cables one month earlier, the accused returned to the NCD
database to download the remaining cables ftom March 2010fbiward. ^^^PE159(showingthat
the accused connected to the Department ofState firewall more than53,000 times on3May
2010). The accused catalogued these additional cables inafile entitled "backup.xlsx,"which
was created that same day. i^^^PE104(showing that the first cable downloaded was datedl
March 2010and that more than 250,000 cables had already been downloaded befbre3May
2010); ^^^^^^,^^^PE104 (proving that the "backup.xlsx" file was created on3May2010). The
"backup,xlsx"containedaftthecab1esfiom1March2010to 30 April 2010, ^^^PE102,The
accused also stored these cables ftom1Maich2010to 30 April 2010inafile entitled "files,zip,"
which he transfened to his personal computer on4May 2010, ^^^TestiinonyofSA Shaver; .^^^
^^^^^PE 127,line 57. Simply put, the accused re-introduced WGET to his SIPRNETcomputer
after he had already stolen more than 250,000 Department ofState cables.
B. 7^^^^^^^^^^^^^^^^^^^^^^^^.^^^^^^^^^^.^^^^^^^^.^^^^^^^^
^^^^^.^^^^.^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^.^^^^^
The number ofcharges and specifications do not misrepresent or exaggerate the accused's
ciiminality,or unfairly increase the accused'spunitive exposure. The combined maximum
punishment for Specification8of Charge II and Specification2of Charge 111,12 years,
accurately reflects the giavity and scope ofthe convicted offenses of adding unauthorized
softwaie to his SIPRNETcomputer and stealing more than 700 DABs. The combined maximum
punishment for Specification 12 ofCharge II and Specification3ofCharge III, 12 years,
accurately reflects the gravity and scope ofthe convicted offenses of stealing more than 250,000
cables, and later re-introducing unauthorized software to download another batch of cables
almost one month later.

CONCLUSION
The United States respectfully requests that the Court deny,in part, the Defense Motion,
The United States agrees with the defense that Specificationl6of Charge II and Specification4
ofCharge 111 should merge intoasingle, ten-year offense for sentencing. However, forthe
remaining specifications which the defense requests that this Court merge, except for

35974

Specifications5and7ofChaige II which are addressed inaseparate filing, the application ofthe
^^^^^^^^ factors makes merger an inappropriate remedy.

J.HUNTERWHYTE
CPT,JA
AssistantTrial Counsel

Icertifythatlsei^ed or caused to be servedatrue copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on2August 2013.

J.HUNTERWHYTE
CPT,JA
AssistantTrial Counsel

10

35975

UNITED STATES OF AMERICA
y.

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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STIPULATION OF
EXPECTED TESTIMONY
SA David Shaver
5 August 2013

It is hereby agreed by the Accused, Defense Counsel, and Trial Counsel, that if Special
Agent David Shaver were present to testify during an Article 39(a) session of this court-martial,
he would testify substantially as follows:
1. During my examination of PFC Manning's SD Card, Prosecution Exhibit (PE) 92,1 found a
file named "yada.tar.bz2.nc" and its created date was "01/30/10 10:22:19PM", as listed on PE
105 for Identification (ID), 1 believe that PFC Manning had to create this encrypted cabinet
file, similar to a "zip" file, on his Personal Mac computer, because it required specialized
software. This software is "MCrypt" and I found "MCrypt" on his Personal Mac computer,
2, After decrypting the cabinet file using the password PFC Manning provided Mr. Adrian
Lamo in his chats (PE 30), 1 decrypted the file. The contents of the file are listed in PE 50 for
ID. Specifically, this file contained a file named "afg events.csv" with a "Last Written" date of
"01/08/10 12:47:50AM" and a file named "irq_events.csv" with a "Last Written date of
"01/05/10 02:58:10AM", A cabinet file created by "MCrypt" stores each individual file's "Last
Written" date within its structure, so that metadata does not change when a file is added to the
cabinet or encrypted,
3, The "Last Written" date is synonymous with a Windows "Last Modified" date and essentially
means that a file was last edited at that specific date or time. The "Last Written" date does not
tell me whether the files were last edited on the SIPRNET or Personal Mac computer, nor does
any other metadata associated with the above-referenced ",csv" files,
4. Based on my forensic analysis, the two files could have been last edited or saved on PFC
Manning's SIPRNET computer or on his Personal Mac. There is no forensic data available that
would indicate the exact dates PFC Manning moved or copied the files onto his Personal Mac. I
know they must have been on his Personal Mac before "01/30/10 10:22:19PM" which is the
creation date of the encrypted cabinet file created on his Personal Mac, and after the dates each
set of data was pulled, as determined by Mr. Patrick Hoeffel in paragraphs 11 and 12 of PE 116,
1 also cannot forensically determine whether the two files, containing the SIGACTS from the
CIDNE-A and CIDNE-I databases, were moved or copied together or separately.

ASHDEN FEIN
MAJ, JA
Trial Counsel

DAVID E. COOMBS
Civilian Defense Counsel

BRADI
PFC, USA
Accused

APPELLATE EXHlB^Tl^^^^
PAGE REFERENCED
.
PAGE OF PAGES

0 35976

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE SPECIFIC
v. OBJECTION UNDER R.C.M.

l00l(b)(4) FOR UNDER
MANNING, Bradley E., PFC SECRETARY PATRICK
U.S. Army, KENNEDY
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer?Henderson Hall, DATED: 5 August 2013
Fort Myer, VA 22211

RELIEF SOUGHT

1. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law and
Rule for Courts Martial (R.C.M.) 1001(b)(4), requests this Court to sustain the Defense?s
speci?cally lodged objections to Under Secretary Patrick Kennedy?s testimony.

STANDARD

2. A military judge?s decision to admit or exclude evidence is reviewed for an abuse of
discretion. United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009).

DISCUSSION
3. The Defense speci?caw objected to the following testimony by Under Secretary Kennedy:

The testimony related to the diminution of reporting through diplomats in the ?eld
and through those that would speak to Department of State (DOS) diplomats in various
countries. Under Secretary Kennedy indicated that he believed the diminution of reporting was
due to a chilling effect caused by the charged leaks in this case. The Defense objects to this
testimony as not be directly related to or resulting from PFC Manning?s misconduct under
R.C.M. 1001(b)(4).

The testimony related to the belief that if we (United States) do not have the trust of
others, we cannot get accurate information and that if we (United States) do not get accurate
information we carmot compile a complete product. The Defense objects to this testimony as not
be directly related to or resulting from PFC Manning?s misconduct under R.C.M. 100l(b)(4).

The testimony related to the belief that non-govemmental persons were no longer
willing to talk fully and frankly with United States diplomats due to the charged leaks in this

1 APPELLATE EXHIBIT lo ?le
PAGE
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0 0 35977

case. The Defense objects to this testimony as not be directly related to or resulting from PFC
Manning?s misconduct under R.C.M. 1001(b)(4).

The testimony related to the belief that some embassies included less information in
their reporting than they did before out of fear that the information would not be protected.
Under Secretary Kennedy testi?ed that the act of reporting less information was a self-generated
limitation on information from various embassies and not as a result of direction by the DOS.
The Defense objects to this testimony as not be directly related to or resulting from PFC
Mar1ning?s misconduct under R.C.M. l00l(b)(4).

The testimony related to the belief that the disclosures had a chilling effect on
diplomatic reporting and that the disclosures have had and will continue to have an impact on
reporting for some inde?nite time period. The Defense objects to this testimony as not be
directly related to or resulting from PFC Manning?s misconduct under R.C.M. 100 and
also as being speculative.

The testimony that due to the perceived chilling effect on diplomatic reporting, the
decrease in information has had a negatively effect on policy makers in Washington D.C. and
our interagency partners. Speci?cally, Under Secretary Kennedy testi?ed that policy decisions
are being made based upon incomplete information (because other countries chose not to engage
in full and frank reporting, which reporting is relied on by policy makers). The Defense objects
to this testimony as not be directly related to or resulting from PFC Marming?s misconduct under
R.C.M. 1001(b)(4) and also as being speculative. The Defense also objects based on foundation
since Under Secretary Kennedy did not explain how he is familiar with policy making, the
various variables that go into policy making, and how diplomatic reporting ?ts into policy
making. Also, ?policy making? is an extremely broad category. Under Secretary Kennedy did
not explain what type of policy making he was referring to and certainly he is not an expert on
?policy making? in general.

CONCLUSION

4. In light of the foregoing, the Defense requests this Court to disregard the improper testimony
offered by Government through Under Secretary Kennedy.

Respectfully submitted,



DAVID EDWA OOMBS
Civilian Defense Counsel

35978

UNITED STATESOF AMERICA
y^^

Manning, Bradley E.
PFCU.S.Army,
HHC, U.S. Army Garrisons
Joint Base Myer-Henderson Hall
FortMyer,Virginia 22211

GOVERNMENTRESPONSETO
DEFENSE OBJECTIONUNDER
R.C.M1001(b)(4)
Under Secretary Patricia Kennedy
5Augnst2013

The United States respectfiilly requests that the Court deny the Defense objections under
RCM1001(b)(4) because the accused'smisconduct directly contributed to the matters described
in the testimony ofUnder Secretary (U/S) ofState for Management Patrick Kennedy, Below
explains why the specific defense objections should be denied.
(a) The testimony related to the diminution ofreporting through diplomats in the field and
through those that would speak to Department ofState (DOS) diplomats in various countries.
Under Secretary Kennedy indicated that he believed the diminution ofreporting was due toa
chilling effect caused by the charged leaks in this case. The Defense objects to this testimony as
not be directly related to or resulting ftomPFC Manning'smisconduct under R.C.M, 1001(b)(4),
Answers U/S Kennedy'sopinion on the diminution ofreporting was based on facts or data
perceived by or made known to U/S Kennedy before the hearing. His conclusion was that PFC
Manning'smisconduct causedadiminutionofreporting,which was the natural and probable
consequence ofPFCManning'sactions, and not based on any intervening event that played the
only important part in bringing about that effecL
(b) The testimony related to the belief that if we (United States)do not have the trust of others,
we cannot get accurate information and that if we (United States)do not get accurate information
we cannot compileacompleteproducL The Defense objects to this testimony as not be directly
related to orresulting ftom PFC Manning'smisconduct under R,C,M,1001(b)(4),
Answers U/S Kennedy'sprovided this information as context for the foundation ofhis ultimate
opinion, and this was based on his personal experience and knowledge,
(c) The testimony related to the belief that nongovernmental persons were no longer willing to
talk ftilly and ftankly with United States diplomats due to the charged leaks in this case. The
Defense objects to this testimony as not be directly related to or resulting ftom PFC Manning's
misconductunderR,C,M, 1001(b)(4),
Answers U/S Kennedy'sopinion on the lack of openness ofnongovemmental persons was
based on facts or data perceived by or made known to U/S Kennedy before the hearing. His
conclusion was that PFC Manning'smisconduct resulted in the unwillingness ofnongovemmental persons to talk fully and ftankly with the United States, and was the natural and
probable consequence ofPFCManning'sactions, and not based on any intervening event that
played the only important part in bringing about that effecL
APPELLATEEXF118^^^^
^ ^ ^ ^ ^ ^ ^ ^ ^ ^

35979

(d) The testimony related to the beliefthat some embassies included less information in their
reporting than they did before out offear that the information would not be protected. Under
Secretary Kennedy testified that the act ofreporting less information wasaself^generated
limitation on information from various embassies and not asaresult of direction by the DOS,
The Defense objects to this testimony as not be directly related to or resulting ftom PFC
Manning'smisconduct under R,C,M,1001(b)(4).
Answers U/S Kennedy'sopinion that Embassies included less information in their reporting
was based on facts or data perceived by or made known to U/S Kennedy before the hearing. His
conclusion was that PFC Manning'smisconduct resulted Embassies including less information
was the natural and probable consequence ofPFCManning'sactions, and not based on any
intervening event that played the only important part in bringing about that eflecL
(e) The testimony related to the belief that the disclosures hadachilling effect on diplomatic
reporting and that the disclosures have had and will continue to have an impact on reporting for
some indefinite time period.The Defense objects to this testimony as not be directly related to or
resulting ftom PFC Manning'smisconduct under R.C.M. 1001(b)(4) and also as being
speculative.
Answers U/S Kennedy'sopinion on the chilling effect on diplomatic reporting and his opinion
on the future impact on reporting were based on facts or data perceived by or made known to
U/S Kennedy before the hearing. His conclusion was that PFC Manning'smisconduct resulted
in this chilling effect and the future impact, and these results were the natural and probable
consequences ofPFCManning'sactions, and not based on any intervening events that played the
only important part in bringing about those effects,
(f) The testimony that due to the perceived chilling effect on diplomatic reporting, the decrease
in information has hadanegatively effect on policy makers inWashingtonD,C,and our
interagency partners. Specifically, Under Secretary Kennedy testified that policy decisions are
being made based upon incomplete information (because other countries chose not to engage in
fiill and ftankreporting,which reporting is relied on by policy makers),The Defense objects to
this testimony as not be directly related to or resulting ftom PFC Manning'smisconduct under
R,C,M,1001(b)(4) and also as being speculative. The Defense also objects based on foundation
since Under Secretary Kennedy did not explain how he is familiar with policy making, the
various variables that go into policy making, and how diplomatic reporting fits into policy
making. Also,"policy making" is an extremely broad category.Under Secretary Kennedy did
not explain what type ofpolicy making he was referring to and certainly he is not an expert on
"policy making" in generaL
Answers The United States qualified U/S Kennedy as an expert in the fieldsof"management
and operations ofthe Department ofState" and "the use ofdiplomatic reporting by United States
policymakers." The defense did not contest this expertise. U/S Kennedy'sopinion on the
impact to policy makers in Washington, DC and interagency partners was based on facts or data
perceived by or made known to U/S Kennedy before the hearing, and not speculative in nature.
His conclusion was that PFC Manning'smisconduct hadachilling effect that negatively affected
policy makers, which was the natural and probable consequence ofPFCManning'sactions, and

35980

not based on any intervening event that played the only important part in bringing about that
effecL

ASHDENFE1N
MAJ,JA
Trial Counsel

Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail,on5August 2013,

^

ASHDENFE1N
MAJ,JA
Trial Counsel

. 35981

UNITED STATES
DEFENSE WITNESS ORDER
v. FOR SENTENCING
MANNING, Bradley E., PFC

U.S. Army,

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

DATED: 6 August 2013



The Defense submits the below order for the twenty-three sentencing witnesses that it
intends to call in the above-captioned court-martial. The Defense no longer intends to
call SGT Chad Madaras, SSG Lawrence Mitchell, or Ms. ihrleah Showman as
sentencing witnesses.

Monday, 12 August 2013 Tuesday, 13 AugI_1st 2013
1) COL David Miller 8) 1LT Tanya Gaab

2) LTC Brian Kerns 9) CW2 Joshua Ehresman
3) MAJ Elijah Dreher IO) CW2 Kyle Balonek
4) MAJ Clifford Clausen 11) Mr. Paul Adkins

5) CPT Matthew Freeburg 12) SGT Daniel Padgett
6) CPT Michael Johnson 13) SGT Lorena Cooley
7) CPT Elizabeth Fields l4) SGT Sheri Walsh

Wednesdav. 14 August 2013
15) Ms. Lillian Smith

16) COL Dick Larry

17) CPT Michael Worsley
18) CAPT David Moulton
19) Ms. Casey Major

20) Ms. Debra Van

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel

APPELLATE
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PAGE 0 PAGES





35982

UNITED STATESOF AMERICA
RULINGS Defense Motion
For Appropriate Relief
Under RCM1001(b)(4)
Manning, Bradley E.
PFCU.S.Army,
HHC, U.S. Army Garrison,
Joint Base Myer Henderson Hall
FortMyer, Virginia 22211

5August2013

On31July 2013,the Defense filedamotion to limit the Govemment'saggravation evidence to
its proper scope under RCM1001(b)(4)(AE 629). Specifically,the Defense objects to three
categories ofGovemment Sentencing evidence:
1. Chain ofEventsTestimony not directly related to the accused'scharged misconduct;
2. "Could" Cause DamageTestimony; and
3. Monetary Expenses and Use ofResourcesTestimony
On2August 2013,the Government filedaresponse in opposition (AE 630),
TlteLaw^
1. The Government may present evidence as to any aggravating circumstance directly related to
or resulting ftom the offenses of which the accused has been found guilty. Evidence in
aggravation includes, but is not limited to, evidence offinancial,social,psychological, and
medical impact on or cost to any person or entity who was the victim of an offense committed by
the accused and evidence of significant adverse impact on the mission, discipline, or efficiency
of the command directly and immediately resulting ftom the accused'soffense. RCM
1001(b)(4) inrelevantpart.
2. The standard for admission of aggravating evidence under RCM1001(b)(4) is higher than
relevance. The offenses committed by the accused must have contributed to the effects that the
Government proposes as aggravation. The accused'soffenses must playamaterial role in
bringing about the effects. The aggravation evidence is not admissible ifan independent,
intervening event played the only important part in bringing about the effecL An accused is not
responsible foranever ending chain of causes and effects.
v^^.^^^41M.J.472,478
( C A A F 1995)
3. If the Court decides that evidence is proper aggravation evidence under RCM1001(b)(4), the
Court then determines whether the probative valueofthe aggravation evidence is substantially
outweighed by the danger of unfair prejudice under MRE 403.^^.v..^^^^^^ 20 MJ 227
( C M A 1985)

Al^PELLATEEXHlEIT^^
PAGEREFERENCED:
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35983

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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