Title: Email from Mr. Coombs to Military Judge Subj: RE: 380-5, 25 Apr 12

Release Date: 2014-03-20

Text: Williams, Patricia CIV JFHQ-NCRJMDW SJAFrom:Sent:To:Cc:(b) (6)(b)(6)Subject:RE: 380-5David Coombs(b) (6)Wednesday, April 25, 2012 9:38PMMa'am,Pursuant to your questions earlier today, the Defense wanted to follow-up on two points:1) Whether AR 380-5 is PunitiveAs the Defense argued, AR 380-5 is a punitive regulation. If you look at the section we have beentalking about, it is entitled "Corrective Measures and Sanctions." I reproduced the relevantsections below for your review:Section VIICorrective Actions and Sanctions1-20. GeneralCommanders will establish procedures to make sure that prompt and apptopriate action is takenconcerning a violation of the provisions of this regulation, especially in those cases involvingincidents which can put classified information at risk of compromise, unauthorized disclosure, orimproper classification of information. Such actions will focus on a correction or elimination ofthe conditions that caused or contributed to the incident.1-21. SanctionsAPPELLATE EXHIBIT L� ')(X 1 1Page_j_ ofPage(s) ?-I\..83ja. DA personnel will be subject to sanctions if they knowingly, willfully, or negligently(1) Disclose classified or sensitive information to unauthorized persons.(2) Classify or continue the classification of information in violation of this regulation.(3) Violate any other provision of this regulation.b. Sanctions can include, but are not limited to warning, reprimand, suspension without pay,forfeiture of pay, removal, dis�harge, loss or denial of access to classified information, andremoval of original classification authority. Action can also be taken under the Uniform Code ofMilitary Justice (UCMJ) for violations of that Code and under applicable criminal law, ifwarranted.c. Original classification authority will be withdrawn for individuals who demonstrate a disregardor pattern of error in applying the classification and sensitivity standards of this regulation.There is no clearer evidence that this section was entitled to be punitive than the fact that the word"sanctions" is used four times and the word "violation" (or a variation thereof) is used three times.2) Whether there is a Distinction Between "Intelligence Information" and "Classified andSensitive" InformationThe Government argued that there is a distinction between "intelligence" (as charged underArticle 134) on the one hand, and "classified" and "sensitive" information, on the other. In theirmotion, they argue that "intelligence is not limited only to classified or sensitive information." (p.7). The Government does not provide any authority to support the view that "intelligence" is notlimited to classified or sensitive information (or, otherwise stated, that "intelligence" is broaderthan classified or sensitive information). They simply point to the Article 104 instruction in theBenchbook, which states that "intelligence" must be true, at least in part. The section does notcomprehensively define intelligence. The Government is proceeding from the understanding that"intelligence" is broader than just classified or sensitive information. The Defense does notbelieve this is true - it submits that "intelligence" is coextensive with classified or sensitiveinformation (at least as charged in this case).2APPEILA1E EXIllBIT lx ""x 11 1Page� ofPage(s) +Moreover, the Defense would note that the Government's definition of "sensitive" information isderived from section 5-19 of AR 380-5, which defines sensitive information for the purpose of theComputer Security Act of 1987, not for the purpose of AR 380-5. "Sensitive" information for thepurpose of the Regulation is not defined. Thus it appears that when AR 380-5 is using "sensitive"in section 1-21 it is not using this word as a term of art or defined term.As stated, the Defense believes that "intelligence" (as charged in Article 134) is the same as"classified" and "sensitive" information in AR 380-5. In this respect, the Defense would note thefollowing:a. AR 380-5: The Regulation's purpose is as follows:1-1. PurposeThis regulation establishes the policy for the classification, downgrading, declassification,transmission, transportation, and safeguarding of information requiring protection in the interestsof national security.The Regulation is 311 pages long. It covers every conceivable aspect of information assurance. It isdifficult to believe that the Army would only intend for this Regulation to cover "classified" and"sensitive" information (and to punish disclosures of such information), but that there would beother "intelligence" out there that the Regulation did not intend to reach. In other words, theGovernment believes that there is information that does not qualify as "classified" or "sensitive"but that is nonetheless /'intelligence." To accept this argument is to accept that the Army has leftcompletely unregulated a whole area of 11intelligence" to simply be dealt with otherwise than byregulation.b. Video Alleged in Specification 2: The Government points to a charged video as being anexample of something that falls within "intelligence" but does not fall under "classified" or"sensitive" information within the meaning of AR 380-5. The Defense believes that the videosquarely falls within the definition of sensitive information as intended in AR 380-5. Even if wewere to accept the definition of sensitive offered by the government e� Any information, the loss,3APPELLATE EXHIBIT Vl< 0(I I IPage� ofPage(s).::)..Accordingly, the Defense submits that because there is a punitive regulation which squarelyaddresses all the charged documents, the offense must be charged as an Article 92 offense and nota 134 offense.The Government believes that because AR 380-5 does not deal with the specific manner in whichinformation is disclosed (i.e. through the internet), then the regulation is not applicable. This isnot the case. AR 380-5, section 1-21a.(1) states that "DA personnel will be subject to sanctions ifthey knowingly, willfully, or negligently- (1) disclose classified or sensitive information tounauthorized persons." It does not matter how this unauthorized disclosure is carried out(through the internet, over the phone, in person, by email, etc.). What matters is that there is alawful general regulation that prohibits disclosure of information, however that disclosure isdone.Finally, the Government's email confuses preemption (the Defense's first argument) with the rulein Borunda (the Defense's second argument). The issue of AR 380-5 deals with the latter issue (i.e.the rule in Borunda) and not preemption. Accordingly, the Government's purporteddistinguishing of McGuinness is inapposite, as that case deals with preemption.v/rDavidDavid E. Coombs, Esq.Law Office of David E. Coombs(b) (6)5APPEILA1E EXHIBIT \)( xxII IPage� ofPage(s) q_(b) (6)***Confidentiality Notice: This transmission, including attachments, may contain confidentialattorney-client information and is intended for the person(s) or company named. If you are notthe intended recipient, please notify the sender and delete all copies. Unauthorized disclosure,copying or use of this information may be unlawful and is prohibited.***-----Original Message----From: (b) (6)Sent: Wednesday, April 25, 2012 7:27 PMTo: (b) (6)Subject: 380-5Ma'am. Ultimately, the United States agrees that AR 380-5 is punitive in nature; however justbecause a regulation is punitive in nature, not all provisions within the regulation are punitive.For example, AR 25-2 sets forth "bolded" paragraphs which highlight the exact provisions whichare punitive. There are portions of AR 380-5 that are punitive in nature, but those provisionsfollow after Chapter 1, with the specified prohibited conduct, such as storing classifiedinformation at a residence (paragraph 7-6), knowingly or willfully disclosing classifiedinformation (paragraph10-11 through -23), or negligently violating the regulation (paragraph 10-10). Specifically, Chapter1 of AR 380-5 is titled "General Provisions and Program Management." Other provisions withinChapter 1 of AR 380-5 include an explanation of abbreviations and terms (1-3), the responsibilitiesof the Secretary of the Army (1-4), the scope of the regulation (1-10), background information (1-6APPEILA1E EXHIBIT UX;(I l� ofPage(s)Page+114). Most regulations, like AR 380-5, contain background information on the regulation upfront,to include AR 380-5, para.1-21. Paragraph 1-21, Subsection (b) thereof sets out the sanctions available for disclosing suchinformation, to include, without limitation, warning, reprimand, action under UCMJ, and actionunder applicable criminal law. See AR 380-5, para. 1-21b. The United States does not dispute thatother provisions contained within AR 380-5 are punitive. See AR 380-5, para.10-10 (subjecting persons to administrative sanctions if they negligently disclose, to unauthorizedpersons).However, if the Court finds Paragraph 1-21 is punitive, then Specification 1 of Charge II is notpreempted by Article 92. In addition to what has already been provided in the government'swritten response and argument today, Paragraph 1-21 does not hold a Soldier criminallyresponsible for wrongful and wantonly causing intelligence to be published on the internet, butonly the knowing, willful, or negligent disclosure of classified or sensitive information tounauthorized persons. In McGuinness, the Court of Military Appeals actually held that the Navyregulation (comparable to AR 380-5) which prohibited storing classified information at anindividual's residence was not preempted by a violation of 18 USC 793 for the same type ofoffense. The Court stated that nothing in the legislative history of Article 92 provided thatCongress intended general orders I regulations to occupy the field for offenses that could becharged under Article 134. Although the McGuiness Court applied this standard to a Clause 3offense (18 USC 793(e)), the United States cannot find any contrary case law which would notapply this to a Clause 1 and 2 offense. Finally, there is no evidence that the Army intended AR380-5 to cover the field for causing intelligence to be published on the internet or even disclosureof classified, or sensitive information or intelligence to unauthorized individuals, evidenced bymultiple other punitive laws/regulations that touch on this subject, such as AR 530-1 (paragraph 21), Articles 104, 106a.In McGuiness, the Court found that paragraph 7-6, AR 380-5 was punitive.Paragraph 7-4 if found within the same section as paragraph 7-6 and contains similar prohibitinglanguage about storing classified information.Vr Maj FeinAPPElLATE EXHIBIT lKKX.t1 17---.2_ ofPage(s) -;2.Page


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