Title: Gov Resp to Def Motion to Dismiss The Spec of Ch I for Failure to State an Offense, 12 Apr 12

Release Date: 2014-03-20

Text: UNITED STATES OF AMERICAv.Manning, Bradley E.PFC, U.S. Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFort Myer, Virginia 22211)))))))))GOVERNMENT RESPONSETO DEFENSE MOTION TODISMISS THE SPECIFICATIONOF CHARGE I FOR FAILURETO STATE AN OFFENSE12 April 2012RELIEF SOUGHTCOMES NOW the United States of America, by and through undersigned counsel, andrespectfully requests this Court deny the defense motion to dismiss the Specification of Charge Ifor failure to state an offense. The United States also requests this Court deny the defenserequest to declare the term "indirectly," as used in Article 104, Uniform Code of Military Justice(UCMJ), unconstitutionally vague in violation of the First and Fifth Amendments to the UnitedStates Constitution, or substantially overbroad in violation of the First Amendment to the UnitedStates Constitution. Finally, the United States respectfully requests this Court adopt the US.Department of the Army, Pam. 27-9, Military Judges' Benchbook (1 January 201 0) (Benchbook),elements for the offense of Giving Intelligence to the Enemy under Article 104, UCMJ.BURDEN OF PERSUASION AND BURDEN OF PROOFAs the moving party, the defense has the burden of persuasion on any factual issue theresolution of which is necessary to decide the motion. Manual for Courts-Martial (MCM),United States, Rule for Courts-Martial (RCM) 905(c)(2) (2008). The burden of proof is by apreponderance ofthe evidence. RCM 905(c)(l).FACTSThe United States stipulates to the facts as set forth in the defense motion, except for thefollowing "facts" in paragraph 4:"The Government's theory of how PFC Manning knowingly gaveinformation to the enemy fails to allege the requisite intent withinthe meaning of Article 104 and, as such, the Specification andCharge should be dismissed for failure to state an offense. In thealternative, the Defense argues that Article 104, as applied in thiscase, violates the Due Process and First Amendment rights ofPFCManning."Def Mot. at 2. The United States also disputes the following statement in paragraph 3 of theDefense Motion: "The case has been referred to a general court-martial by the convening1authority with a special instruction that the case is not a capital referral." The above-captionedcase was referred to a general court-martial without special instructions.The United States adds the following additional facts:The Benchbook publishes the following model specification for Giving Intelligence to theEnemy under Article 104(2), UCMJ:In that(personal jurisdiction data) did, (at/on boardlocation), on or about, without proper authority,knowingly give intelligence to the enemy (by informing a patrol ofthe enemy's forces of the whereabouts of a military patrol of theUnited States forces) ().The Benchbook lists the following elements for Giving Intelligence to the Enemy underArticle 104(2), UCMJ:(1) That (state the time and place alleged), the accused, without properauthority, knowingly gave intelligence information to (a) certainperson(s), namely: (state the name or description of the enemyalleged to have received the intelligence information);(2) That the accused did so by (state the manner alleged);(3) (state the name or description of the enemy alleged to havereceived the intelligence information) was an enemy; and(4) That this intelligence information was true, at least in part.WITNESSES/EVIDENCEThe United States requests this Court consider the following enclosures:1. Department of the Army, Pam. 27-9, Military Judges' Benchbook, Ch. 3, pp. 319-325(1 January 201 0)2. Charge Sheet3. Enclosure 1 to Appellate Exhibit XIV (Bill of Particulars)LEGAL AUTHORITY AND ARGUMENTA specification is a plain, concise, and definite statement of the essential factsconstituting the offense charged. RCM 307(c)(3). A specification is legally sufficient when it(1) alleges all the elements of the offense, (2) provides notice to the accused of the offenseagainst which he must defend, and (3) gives sufficient facts to protect against re-prosecution.2See United States v. Sell, 11 C.M.R. 202, 206 (C.M.A. 1953). Every element must be allegedexpressly or by necessary implication. RCM 307(c)(3). Specific evidence supporting theallegations ordinarily should not be included in the specifications. RCM 307(c)(3) discussion(G)(iii).I.THE SPECIFICATION OF CHARGE I ADEQUATELY STATES AN OFFENSE.The Specification of Charge I is legally sufficient because it alleges all the elements ofthe Article 104 offense in this case, either expressly or by necessary implication. TheSpecification contains the name, rank, and military association of the accused ("Private FirstClass Bradley E. Manning, U.S. Army"); the date and place of the offense ("ContingencyOperating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May2010"); a description of the offense ("give intelligence to the enemy, through indirect means"),including the mens rea required ("knowingly"); and includes words indicating criminality("without proper authority''), as required by RCM 307(c)(3). See RCM 307(c)(3) discussion(C)(i)-(ii); (D)(i), (iii); (E); (G)(i), (iii). No additional information is required to be alleged. Seeid. Further, the Government's filing of a Bill of Particulars in this case cures any notice ordouble jeopardy issues by identifying the enemy, the intelligence, and the indirect means. SeeEnclosure 3; see also RCM 906(b)(6).The defense argues that the Specification of Charge I fails to allege a "general criminalintent." See Def. Mot. at 2-3. However, the Specification of Charge I alleges the accused"knowingly gave intelligence to the enemy" and that he did so ''without proper authority." SeeCharge Sheet. This confusion over what is required to be alleged seems to arise from casescharacterizing the nature of findings under Article 104(2). United States v. Batchelor, 22 C.M.R.144 (C.M.A. 1956), is instructive on this point. In Batchelor, the Court of Military Appeals heldthat Article 104(2) does not require a specific criminal intent; thus, a law officer's instructions onthe elements of Article 104(2) were correct when he characterized Article 104(2) as requiring thefmding of a general criminal intent and a finding as to words importing criminality. SeeBatchelor, 22 C.M.R. at 158. Like the prosecution in Batchelor, the United States agrees thatArticle 104(2) requires a showing or finding of criminal intent-but this is wholly different thanwhat is required to be alleged in a specification. See id. at 157. In this case, the United Statesalleged a general criminal intent by specifying that the accused acted "knowingly" and ''withoutproper authority." See Charge Sheet. The inclusion of mens rea and words indicatingcriminality in the Specification of Charge I confirms the United States has adequately stated anoffense under Article 104(2) in this case.The defense repeatedly conflates what the United States is required to prove with whatthe United States is required to allege in order to adequately state an offense. This is readilyapparent in the defense statement that "courts have uniformly held that the Government mustallege and prove a general criminal intent to give intelligence to, or communicate with, theenemy under Article 104(2)." Def. Mot. at 3. For this proposition, the defense relies onBatchelor, United States v. Anderson, 68 M.J. 378 (C.A.A.F. 2010), and United States v. Olson,22 C.M.R. 250 (C.M.A. 1957). See Def. Mot. at 3. These cases lend no support to the defenseposition. As discussed above, Batchelor held that Article 104(2) requires a finding of generalcriminal intent. Anderson and Olson are similarly inapplicable. The accused in Anderson was3charged with "Attempting to Aid the Enemy" under Article 104(1 ). An "attempt" under Article104(1) requires the Government to prove a specific intent to aid the enemy as an element ofthe1crime ; thus, the Government could not allege any general criminal intent as contemplated by thedefense. See Anderson, 68 M.J. at 384--85, nn. 4--7. As for Olson, the accused was charged with"Aiding the Enemy" under Article 104(1 ), not "Communicating" or "Giving Intelligence to theEnemy" under Article 104(2). Olson, 22 CMR at 254. Even assuming, arguendo, that Olsonhad been charged with "Communicating" under Article 104(2), "Communicating" and "GivingIntelligence" are different offenses. They have different model specifications and differentelements. See MCM, United States, pt. IV,~ 28(b)(4)-(5), 28(f)(3)-(4) (2008). Modelspecifications are intended to guide drafters by incorporating the necessary elements, and theSpecification of Charge I expressly alleges the elements for "Giving Intelligence" under Article104(2). See MCM, Punitive Articles Discussion, at IV-1 (2008).As stated above, the defense motion repeatedly emphasizes what the United States isrequired to prove in order to obtain a conviction. As such, this portion of the defense motionwould be more appropriately styled as a motion for a finding of not guilty under RCM 917 afterthe close ofthe Government's case. See RCM 917(a). The Specification of Charge I adequatelystates an offense under Article 104(2).II.ARTICLE 104, AS APPLIED, IS NOT UNCONSTITUTIONALLY VAGUE IN. VIOLATION OF THE FIFTH AMENDMENT.The defense argues that the Government's application of Article 104, including the term"indirectly," renders Article 104 unconstitutionally vague in violation ofthe Due Process Clauseofthe Fifth Amendment. See Def Mot. at 8. In short, Article 104 is not unconstitutionallyvague because an ordinary Soldier could understand what conduct was prohibited, and theapplication of the Article in this case does not encourage arbitrary and discriminatoryenforcement.Due process requires "fair notice" that an act is forbidden and subject to criminalsanctions. See United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998); see also Connally v.General Constr. Co., 269 U.S. 385, 391 (1926) ("A statute which either forbids or requires thedoing of an act in terms so vague that men of common intelligence must necessarily guess at itsmeaning and differ as to its application violates due process."). Due process also requires fairnotice as to the standard applicable to the forbidden conduct. See Parker v. Levy, 417 U.S. 733,755 (1974).In determining the sufficiency of the notice, courts must examine the law "in light of theconduct with which [an accused] is charged." United States v. National Dairy Products Corp.,372 U.S. 29, 33 (1963) (citing Robinson v. United States, 324 U.S. 282 (1945)). There is astrong presumption of validity that attaches to an Act of Congress; hence, "statutes are not1Under Article 104(a)(l), attempting to aid the enemy, the Government must prove (1) That the accused did acertain overt act; (2) That the act was done with the intent to aid the enemy with certain arms, ammunition, supplies,money, or other things; (3) That the act amounted to more than mere preparation; and (4) That the act apparentlytended to bring about the offense of aiding the enemy with certain arms, ammunition, supplies, money, or otherthings. UCMJ art. 104(b)(2) (2008).4automatically invalidated as vague simply because difficulty is found in determining whethercertain marginal offenses fall within their language." Jordan v. De George, 341 U.S. 223, 231(1951 ). Generally, a statute is not void for vagueness if it defines ''the criminal offense withsufficient definiteness that ordinary people can understand what conduct is prohibited and in amanner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson,461 us 352, 357.In Parker, the Supreme Court held that the standard of review for ''void for vagueness"challenges to punitive Articles in the military justice system is whether "one could reasonablyunderstand that his contemplated conduct is proscribed." Parker, 417 U.S . at 754-57 (''Void forvagueness simply means that criminal responsibility should not attach where one could notreasonably understand that his contemplated conduct is proscribed.") (citing National DairyProducts Corp., 372 U.S. at 32). This standard of review provides Congress more deference indrafting laws governing the military than civilians. See id. , at 756 ("For the reasons whichdifferentiate military society from civilian society, we think Congress is permitted to legislateboth with greater breadth and with greater flexibility when prescribing the rules by which theformer shall be governed than it is when prescribing rules for the latter.").A. A Soldier Could Reasonably Understand that Compromising Intelligence Through anIntermediary was Subject to Criminal Sanction in the U.S. Army.It is "settled law that notice is determined through application of an objective test as towhether a person could 'reasonably understand that his contemplated conduct is proscribed."'United States v. Saunders, 59 M.J. 1, 10 (C.A.A.F. 2003) (citing Parker, 417 U.S. at 757); seealso United States v. Vaughan, 58 M.J. 29, 41 (C.A.A.F. 2003) (Crawford, J. , concurring) ("[I]tis not whether [the accused] was on notice that conduct like [his] was [punishable under Article104], but rather, whether a reasonable enlisted person would be on notice that conduct like [theaccused 's] was [punishable under Article 104]."). Courts may review the Manual for CourtsMartial, military case law, military customs and usage, and military regulations in determiningwhether sufficient notice was provided. See Vaughan, 58 M.J. at 30; see also United States v.Boyett, 42 M.J. 150, 153 (C.A.A.F. 1995) (noting that a court may take judicial notice ofregulations as evidence of military customs).The very language of Article 104 puts a reasonable Soldier on notice that compromisingintelligence to the enemy through an intermediary would subject him or her to criminal actionunder the Article. Article 104 crirninalizes the act of giving intelligence to the enemy, "eitherdirectly or indirectly. " See UCMJ art. 104 (2008). The act must also be done ''without properauthority." See id. A reasonable Soldier would understand that sending intelligence throughemail to the enemy without authority, if the Soldier knew the enemy was on the other end of thetransmission, constitutes "directly" giving intelligence to the enemy. A reasonable Soldierwould also understand that posting intelligence on a website used by the enemy withoutauthority, if the Soldier knew the enemy used the website, constitutes "indirectly'' givingintelligence to the enemy. Although Article 104 was written long before the advent of theinternet, reasonable Soldiers understand that use of the internet does not alter the commonunderstanding of"giving." The language of Article 104 provides sufficient notice that giving5intelligence to the enemy through the internet, without authority to do so, is a violation of theArticle.In addition to the plain reading of Article 104, Army regulations and mandatory trainingput every Soldier on notice that disclosing intelligence on the internet, without proper authority,may subject that individual to action under the UCMJ. Army Regulation (AR) 380-5, para. l2la, states that "Department of Army personnel will be subject to sanctions if they knowingly,willfully, or negligently disclose classified or sensitive information to unauthorized persons."US. Dep 't ofArmy, Reg. 380-5, Department of the Army Information Security Program para. l2l(a)(l) (29 September 2009). Those sanctions may include actions "taken under the UCMJ forviolations ofthat Code and under applicable criminal law, ifwarranted." !d., at para. l -2l(b). ASoldier could reasonably understand, certainly during a time of war, that ''unauthorized persons"included enemies of the United States. This regulation provides sufficient notice to Soldiers thatcompromising intelligence, without proper authority, may subject an individual to criminalsanctions.Furthermore, annual Operations Security (OPSEC) training is mandatory for all Soldiers.See AR 530-1, Operations Security para. 4-2( a)(2)(b) (19 April 2007). OPSEC training underAR 530-1 puts every Soldier on notice that compromising intelligence on the internet maysubject that person to criminal sanctions. AR 530-1, para. 2-1, states that all Army personnel''will prevent disclosure of critical and sensitive information in any public domain to include butnot limited to the World Wide Web." !d., at para. 2-l(c). AR 530-1, para. 4-3(b), provides that"[w ]hile the Internet is a powerful tool to convey information quickly and efficiently, it can alsoprovide adversaries a potent instrument to obtain, correlate, and evaluate an unprecedentedvolume of aggregate information regarding U.S. capabilities, activities, limitations, andintentions." !d., at para. 4-3(b). AR 530-1, Appendix E-3(a)(2)(b) states that ''the Internet hasbecome an ever-greater source of open source information for adversaries ofthe U.S., websitesin particular. .. are a potentially significant vulnerability." !d., at Appendix E-3(a)(2)(b). Thefailure to comply with AR 530-1 may subject a person to criminal sanction under the UCMJ.See id., at para. 2-l(b)(2). In short, military regulations and training also provide notice toSoldiers that compromising intelligence to the enemy, without proper authority, could subject anindividual to disciplinary action under the UCMJ.Because of the plain language of Article 104, as well as the notice provided by Armyregulations and mandatory training, Soldiers could reasonably understand that knowingly givingintelligence to the enemy through an intermediary was subject to criminal sanction under theUCMJ.B. The Application of Article 104 in this Case does not Encourage Arbitrary andDiscriminatory Enforcement.The void for vagueness doctrine "focuses both on actual notice to citizens and arbitraryenforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). However, courts recognize ''thatthe more important aspect of[the] vagueness doctrine 'is not actual notice, but the other principalelement of the doctrine-the requirement that a legislature establish minimal guidelines togovern law enforcement."' !d., at 357 (citing Smith v. Goguen, 415 U.S. 566, 574 (1974) (noting6that without minimal guidelines, a statute may permit "a standardless sweep [that] allowspolicemen, prosecutors, and juries to pursue their personal predilections"). A statute should aimto contain, but not wholly restrict, the exercise of some discretion in enforcement. See Graynedv. City of Rocliford, 408 U.S. I 04, 114 (1972) ("As always, enforcement requires the exercise ofsome degree of police judgment, but, as confined, that degree of judgment [should be]permissible.").Determining whether an Article may lead to arbitrary enforcement requires militarycourts to analyze whether an Article provides a clear standard to guide enforcement. See UnitedStates v. Cochrane, 60 M.J. 632, 634 (N-M. Ct. Crim. App. 2004). In Cochrane, the defenseargued a Navy Instruction was void for vagueness because, inter alia, "[i]t [was] impossible todetermine which conduct ic;; 'unlawful' and therefore criminal and which is not under the orderwithout guessing." ld., at 634. The Court denied this argument because the instruction "[did]not encourage either arbitrary or discriminatory enforcement." Id. , at 635. Requiring the "intentto induce intoxication," the Court reasoned, "establishe[d] a clear standard against which anindividual' s conduct is measured." ld., at 635.Article I 04, by its terms, does not encourage arbitrary and discriminatory enforcement.Instead, it provides clear standards by which to guide enforcement. Article 104 requires, interalia, that the person ''knowingly" give intelligence to the enemy. See UCMJ art. I 04 (2008).This mens rea requirement guards against arbitrary enforcement by establishing that merenegligent disclosures or even wanton disclosures are not subject to prosecution under Article104. In addition to the mens rea requirement, a Soldier must give "intelligence" to the enemy.See id. The requirement to give "intelligence" further narrows enforcement of the Articlebecause intelligence "means any helpful information, given to and received by the enemy, whichis true, at least in part." See Benchbook, p. 323 (emphasis added). The requirement of receipt ofintelligence by the enemy ensures that a prosecution will not be pursued without evidence of theenemy' s possession of the intelligence. Lastly, the Soldier must give intelligence to the enemy''without proper authority." See UCMJ art. I 04 (2008). This limitation protects the Soldier whois authorized by position or circumstance to give intelligence and ensures that only wrongful actsare pursued. The parade ofhypotheticals offered by the defense, such as the argument that adiscussion with a reporter regarding Post-Traumatic Stress Disorder would constitute a violationof Article 104, ignore these limiting factors and do not constitute an offense punishable underArticle 104. See De£ Mot. at 9.III.ARTICLE 104 IS NOT SUBSTANTIALLY OVERBROAD IN VIOLATION OFTHE FIRST AMENDMENT.The defense argues that the Government's application of Article 104, including the term"indirectly," renders Article I04 substantially overbroad in violation ofthe First Amendment.See De£ Mot. at I 0. The defense argument has no merit.As a practical matter, use of"indirectly" in the context of Article 104 is not novel, nor isthe Government's use of the term within the Specification of Charge I. William Winthrop' sMilitary Law and Precedents provides the following guidance:7The modes of holding correspondence and g1vmg intelligencealready instanced have been mainly of a direct character. It was,however, the indirect modes which ... principally exercised thevigilance of our military authorities. The proceeding of this sortwhich it was found especially necessary to denounce and prohibitwas the publication in newspapers of particulars in regard to[information which] might readily be communicated to the enemy;and in several instances the offence [sic] thus committed was madethe subject of charges under the [precursor to Article 104], or oftrial by military commission.The publishing by way ofadvertisement in newspapers, of "Personals," by means of whichan indirect correspondence was maintained with individuals withinthe enemy's lines, was also expressly prohibited.William Winthrop, Military Law and Precedents, 634 (2d ed. 1920 reprint). Despite thehistorical basis for use of the term "indirectly" in the context of publishing intermediaries, thedefense maintains that the Government's interpretation or application of Article 104 to theconduct in this case, including use of"indirectly," criminalizes a substantial amount ofconstitutionally protected speech. See De£ Mot. at 11. The United States disagrees.A law may be invalidated as overbroad under the First Amendment if "a substantialnumber of its applications are unconstitutional, judged in relation to the statute's plainlylegitimate sweep." United States v. Stevens, 130 S.Ct. 1577, 1587 (quoting Washington StateGrange v. Washington State Republican Party, 522 US 442, 449 n.6 (2008)). The Government'sinterpretation or application of Article 104 to the conduct in this case, including use of"indirectly," does not prohibit constitutionally protected speech. Rather, the defensemischaracterization ofthe Government's "interpretation" of Article 104 is misguided in that thehypotheticals they offer do not constitute an offense punishable under Article 104.The defense argues that Article 104 "categorically prohibits any unauthorizedcommunication with an enemy, regardless of whether the communication contains anyintelligence information" and warns that the Government could prosecute an individual for "acommunication that is not aimed at an enemy but may be indirectly accessed by the enemy .... "De£ Mot. at 11. Aside from the fact that this example is inapplicable to the present case, as theaccused was charged with "Giving Intelligence to the Enemy" not "Communicating with theEnemy," it is an inaccurate and incomplete statement of the law. The defense formulationignores the fact that the communication must be intended to reach the enemy. See Benchbook, p.324. Thus, this hypothetical raises no constitutional issues.Likewise, the hypotheticals raised by the defense regarding information placed on theinternet that "might be accessed by the enemy" are similarly inapplicable. See De£ Mot. at 11.The United States has not charged the accused under the Specification of Charge I with knowingthat information "might be accessed by the enemy." See Charge Sheet. The United States hascharged the accused with "knowingly" giving intelligence to the enemy ''through indirectmeans." See Charge Sheet. Actual knowledge is required-not knowledge that information"might be accessed." See UCMJ art. 104(c)(5)(c) (2008). This difference invalidates all ofthe8defense hypotheticals involving simple discussions with reporters or the press, and extinguishesany claim that Article 104 is substantially overbroad. Further, assuming the accused under thehypothetical "knew" that by giving information to a reporter, he was giving it to the enemy- notthat the accused generally knew that the enemy uses the internet or reads newspapers - theUnited States is still required to prove those discussions occurred "without proper authority," afact the defense ignores. Lastly, "giving" intelligence requires that the United States provereceipt of the information by the enemy. See Benchbook, p. 323 ; Winthrop, supra p. 8, at 634("It is necessary that the enemy shall have been actually informed."). The defense claim thatArticle 104 is substantially overbroad in violation of the First Amendment is without merit.CONCLUSIONThe United States respectfully requests this Court DENY the defense motion to dismissthe Specification of Charge I for failure to state an offense. The United States also requests thisCourt deny the defense request to declare the term "indirectly," as used in Article 104,unconstitutionally vague in violation of the First and Fifth Amendments to the United StatesConstitution, or substantially overbroad in violation of the First Amendment to the United StatesConstitution. Finally, the United States respectfully requests this Court adopt the Benchbook 'selements for the offense of Giving Intelligence to the Enemy under Article 104.c)lJ~~MORROWCPT, JATrial CounselI certify that I served or caused to be served a true copy of the above on Mr. David E.Coombs, Civilian Defense Counsel, via electronic mail, on 12 April2012.oh~6£'ANMORROWCPT, JATrial Counsel9

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