Title: Def Targeted Brief on 18 USC 793e, 29 Mar 13

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATESDEFENSE TARGETED BRIEFON 18 U.S.C. SECTION 793(e)MANNING. Bradley E., PFCU.S. Anny, Headquarters an ea quarters Company, U.S.Anny Garrison, Joint Base Myer-Henderson Hall,Fort Myer, VA 222llDATED: 29 March ZOI3RELIEF SOUGHTl. The Defense respectfully requests that this Court deny the Govemment?s requested relief ofinstructing on the so-called ?documents clause" of l8 U.S.C. Section 793(e). The Defense does[101 FCCIUCSI oral argument.BURDEN OF PERSUASION AND BURDEN OF PROOF2. The burden of proof on any factual issue the resolution of which is necessary to decide amotion shall be by preponderance of the evidence. See Manual for Courts-Martial, UnitedStates, Rule for Courts-Martial (R.C.M.) 905(c)(l) (ZOIZ). The burden of persuasion on anyfactual issue the resolution of which is necessary to decide a motion shall be on the Governmentas the moving party. See R.C.M. 905(c)(2). A question of statutory interpretation is a questionof law. R.C.M. 80] FACTS3. PFC Manning is charged with one specification of aiding the enemy, one specification ofdisorders and neglects to the prejudice of good order and discipline and service discrediting,eight specifications of violations of I8 U.S.C. Section 793(e). ?ve speci?cations of violations ofI8 U.S.C. Section 641, two specifications of violations of I8 U.S.C. Section I030, and fivespecifications of violating a lawful general regulation, in violation of Article 104, I34, and 92,Uniform Code ofMilitary Justice (U.C.M.J.).3 I- ?xv? . . PAGE moss4. The Defense does not intend to produce any witnesses or evidence for this motion.LEGAL AUTHORITY AND ARGUMENT5. The Court should deny the Government?s requested relief of instructing on the ?documentsclause? of 18 U.S.C. Section The language of the statute under which PFC Manning ischarged reads as follows:Whoever having unauthorized possession of, access to, or control over anydocument, writing, code book, signal book, sketch, photograph, photographicnegative, blueprint, plan, map, model, instrument, appliance, or note relatingto the national defense, or information relating to the national defense whichinformation the possessor has reason to believe could be used to the injury ofthe United States or to the advantage of any foreign nation, willfullycommunicates, delivers, transmits or causes to be communicated, delivered, ortransmitted, or attempts to communicate, deliver, transmit or cause to becommunicated, delivered, or transmitted the same to any person not entitled toreceive it, or willfully retains the same and fails to deliver it to the officer oremployee of the United States entitled to receive it;The statute punishes two distinct acts: i) willful communication, delivery or transfer of nationaldefense infonnation (ND1) to unauthorized persons, or ii) willful retention of and failure todeliver it to an of?cer entitled to receive it.6. Although ?reason to believe? is contained in Section 793(e) and is a listed element of thecharged Section 793(e) specifications of Charge 11, the Government believes that it does not needto prove the ?reason to believe? element in order to prove the charged offenses. TheGovernment argues that under the ?documents clause? of 18 U.S.C. Section 793(e), it is notrequired to prove that PFC Manning had reason to believe the information transmitted ?could beused to the injury of the United States.? See Appellate Exhibit 496. In other words, theGovernment is arguing that the ?reason to believe? scienter requirement only applies tointangible information relating to the national defense and not to tangible information in the formof documents and the like. Accordingly, the Government urges an interpretation of the sectionthat bifurcates the mens rea requirement depending on whether the disclosed item falls within the?documents clause? (tangible infonnation) or ?information clause? (intangible information). TheGovernment cites three cases in support of its position. See US. v. Rosen, 445 F. Supp. 2d 602,612 (E.D. Va. 2006); US. v. Drake, 818 F. Supp. 2d 909, 916-17 201 US. v.Kiriakou, 2012 WL 4903319, at *1 (E.D. Va. Oct. 16, 2012).7. The Government?s argument and reliance on Rosen and those federal cases that follow Rosen1 For the purposes of this Motion, the Defense will use the Govemment?s n0menclature?the ?documents clause?and the "information clause? but contests that there are two such clauses controlling the mens rea requirement of 18U.S.C. Section 793(e).in recognizing a ?documents clause? and ?information clause? is misplaced for several reasons.First, the Court of Appeals for the Armed Forces (C.A.A.F.) has clearly held that the mens rearequirement for all of Section 793(e) is reason to believe that the charged information could beused to the injury of the United States or to the advantage of any foreign nation. Second, theRosen interpretation of Section 793(e) relied upon the Government for its argument has beenrejected by the C.A.A.F. and A.C.C.A. Finally, the distinction between ?documents? and?information? (and, between ?tangible? and ?intangible? information) is an arbitrary anduntenable one that cannot be used to guide courts in determining scienter requirements under 18U.S.C. Section 793.1. C.A.A.F. Clearly Held In Diaz that the Scienter Requirement of 18 U.S.C. 793(e) Is?Reason to Believe?8. C.A.A.F. held in Diaz that the mens rea requirement contained in Section 793(e) was clear inthat it punished ?[w]hoever having information relating to nation defense which informationthe possessor has reason to believe could be used to the injury of the United States or to theadvantage of any foreign nation, willfully communicated, delivered, or transmitted thesame to any person not entitled to receive it.? 69 MJ. 127, 132 (C.A.A.F. 2010). C.A.A.F. heldthat ?[t]he critical language is, of course, that the accused ?has reason to believe could be used tothe injury of the United States or to the advantage of any foreign nation.?? Id. (emphasis inoriginal). In identifying the critical language of Section 793(e), C.A.A.F. made it clear that theGovernment must prove that an accused had a reason to believe the information could be used tothe injury of the United States or to the advantage of any foreign nation.9. Importantly, C.A.A.F. in Diaz did not draw the distinction adopted in Rosen and its progenythat the Government now that there is a different mens rea requirement depending onwhether the disclosed item is a ?document? (tangible) or ?information? (intangible). Nowhere inthe judgment is there any inkling that military courts accept a bifurcation of the mens rearequirement depending on whether an accused is charged under the so-called ?documents clause?or the ?information clause.?910. When C.A.A.F. identi?ed the mens rea requirement of Section 793(e), it was clearly awareof the Rosen opinion. The Rosen opinion was decided a mere four years before the Diaz case;and as argued in more detail below, the accused in Diaz actually argued for C.A.A.F. to followRoserfs ?bad faith? requirement, which C.A.A.F. declined to do. Had C.A.A.F. elected to followRosen and recognize a mens rea distinction between ?documents? (tangible information) and?information? (intangible infonnation) in Section 793(e), it would have arrived at its result in adifferent manner. Instead of spending six pages of its opinion discussing ?reason to believe,?C.A.A.F. would have simply stated that ?reason to believe? was not required given the fact thatDiaz was charged with disclosing a document tangible classi?ed information)? C.A.A.F.,2 The facts in Dia: clearly involved a document or tangible information being disclosed by the appellant. Theappellant in Dia: printed out a list of detainees from the Joint Detainee Information Management System (JDIMS)(a classi?ed web-based database on a Secure Internet Protocol Router Network and anonymouslymailed that list to a civilian attorney in order to assist her efforts in locating habeas counsel for those unrepresenteddetainees. Diaz, 67 M.J. at 129 -I31. Additionally, the document came off of a classi?ed database and C.A.A.F.3however, did not end its analysis of the mens rea requirement by citing the ?documents clause.?Instead, it spent a signi?cant portion of its opinion detailing how the government had met itsburden of proving the accused had a ?reason to believe? the charged information, a document,could be used to the injury of the United States or to the advantage of any foreign nation. Id. atI32 - 134. In choosing to use the mens rea prescription that it did for Section 793(e), C.A.A.F.made it clear that it did not recognize a Rosen ?documents? (tangible information) and?information? (intangible information) distinction. Given the clear statement on the men rearequirement of Section 793(e) by C.A.A.F. in Diaz, this Court should deny the Government?srequest to instruct on the ?documents clause? of 18 U.S.C. Section 793(e).2. C.A.A.F. Has Already Rejected the Rosen Holding and No Military Court HasFollowed Rosen1. In addition to endorsing a ?documents clause? and ?information clause? the Rosen court alsoadded a gloss to 18 U.S.C. Section 793(e) in holding that the Government must prove ?bad faith?when an accused is charged with disclosing information that the accused had reason to believecould be used to the injury of the United States or to the advantage of a foreign nation. In Diaz,the accused argued that such a ?bad faith? requirement should be adopted by military courtsinterpreting Section 793(e). Id. at 132. C.A.A.F. outright rejected this argument. Id. at 132 -133. While recognizing that some federal case law required a heightened mens rea requirementof ?bad faith,? C.A.A.F. held that ?the law in the militaryjustice system is well?settled on thispoint? and that Section 793(e) ?does not require proof of an accused?s bad faith.? Id.I2. The Government is now requesting this Court to salvage a part of the Rosen opinion thatdiscussed the mens rea requirement of Section 793(e). C.A.A.F. in Diaz clearly rejected theRosen courts? textual and legislative interpretation of Section 793(e) when it held that the mensrea requirement of Section 793(e) did not require proof of an accused?s bad faith. In rejectingthe Rosen position on requiring bad faith, the Diaz Court also implicitly rejected differing mensrea requirements depending on whether the disclosed items were ?documents? or ?information.?There is no reason to believe that C.A.A.F. intended to follow a portion of the Rosen opinionwhen it clearly rejected another portion of the Rosen opinion, particularly given that bothportions were part and parcel of the same argument. As discussed above, the clearest proof ofthis implicit rejection is the analysis in Diaz itself. If C.A.A.F. intended to adopt a?documents?/?information? framework for mens rea: a) it would have said so; and b) it wouldhave concluded its analysis in a completely different way by avoiding the entire discussionof ?reason to believe? since it was dealing with a tangible document).13. Despite the clear holding in Diaz, the Government is requesting this Court to recognize a?documents clause? and ?information clause? and to follow the Rosen precedent?-or at least thepart it likes. In doing so, the Government is requesting this Court to relieve it of the requirementto prove ?reason to believe? for those charged offenses that involve documents or tangibleinformation. The Government cites no military authority for its argument.held that the appellant ?knew he was dealing with sensitive material derived from a classi?ed computer system.? Id.at 134.14. The only other military case to address this issue was the unpublished decision of US. v.Steele. 2011 WL 414992 (A.C.C.A. Feb 3, 201 1). The Steele court, however, did not acceptRosen and its "document?/?information" framework as precedential; it simply dealt with Rosenbecause the accused had argued that the government was required to show that he acted in badfaith when he retained national defense information in violation of Section 793(e). That theSteele court did not adopt Rosen is clear when it stated, ?Further, even if Rosen representedapplicable precedent, we find appellant?s analysis inconsistent with the law and logic of theRosen court.? Id at *3 (emphasis added). The cited statement makes it clear that Steele did notaccept that Rosen applies in military courts; it simply indicated that even if Rosen applied, theaccused was reading Rosen incorrectly.15. lmportantly, a?er pointing out the accused?s flawed logic of relying upon Rosen, A.C.C.A.still went on to discuss why the appellant had a reason to believe the information could be usedto hann of the United States or to the advantage of a foreign nation. Speci?cally, A.C.C.A. heldthat the ?evidence regarding the nature of that information amply demonstrated appellant had?reason to believe [it] could be used to the injury of the United States or to the advantage of anyforeign nation. The mens rea requirement of 18 U.S.C. 793(e) was clearly met.? Id. at Much like in Diaz, had A.C.C.A. believed that the Rosen ?documents clause? applied undermilitary law, it would not have discussed the ?reason to believe? element given the fact theappellant was charged with disclosing documents tangible information). See id at *4 (?Herethe evidence clearly showed that appellant unlawfully retained physical, tangible computer ?lesand documents containing NDI and not ?intangible? information as in 16. This Court should decline the Government?s request to recognize a different mens rearequirement under Section 793(e) for violations involving ?documents? and ?information.?C.A.A.F. and A.C.C.A. have both rejected such a framework under Section 793(e). Both courtsheld that the mens rea requirement of Section 793(e) requires the Government to prove that anaccused had reason to believe that the charged information could be used to the injury of theUnited States or to the advantage of any foreign nation. This Court should require the same anddecline the Government?s request instruct on the ?documents clause? of 18 U.S.C. Section793(e).3. The Distinction Between ?Documents? and ?Information? (and ?Tangible? and?Intangible? Information) Is An Untenable One17. In addition to being entirely unsupported in military law, the ?documents?/?information?distinction is inherently unworkable in practice, further bolstering the argument that there is onlyone mens rea requirement under 18 U.S.C. Section 793(e): that the accused had ?reason tobelieve? that the relevant information could cause injury to the United States or be used to theadvantage of a foreign nation.18. According to the Government, the first part of 18 U.S.C. 793(e) is the ?documents? clausewhich applies when the accused willfully communicates tangible items related to the nationaldefense. The second part of I8 U.S.C. 793(e) is the ?information? clause which applies when theaccused willfully communicates intangible items related to the national defense. The distinctionbetween tangible and intangible national defense information makes no sense and shouldcertainly not be the guiding light in ascribing a mens rea to an offense. Something as importantas the mens rea of an offense should not be left to technical arguments about whether somethingconstitutes a ?document? or ?infonnation? or whether something is ?tangible? or ?intangible??Consider the following hypotheticals:Hypothetical 1: The accused transmits an electronic ?document? via email to a person notauthorized to receive it. The document is never printed by the accused or the recipient. Underthe Government?s interpretation, does this implicate the ?documents" or the ?information? clauseof 18 U.S.C. Section 793(e)? In other words, is the electronic ?document? tangible or intangible?The Defense submits that the information that is transmitted is intangible??it is a series of and that is sent through an elaborate network of wires and connections. The Governmentwould likely submit that despite its actual intangible fonn, this should still be considered tangibleinformation subject to the documents clause. The point is that there is no clear dividing line as towhat differentiates tangible from intangible information??or, otherwise stated, what exactlydifferentiates the ?documents? clause from the ?information? clause.Hypothetical 2: The accused has a physical hard-copy of a classified document in front of him.He reads the document verbatim over the phone to someone not authorized to receive thedocument. Has the accused communicated tangible or intangible information?? The Defensesubmits that this would be considered intangible information because it involved an oralcommunication over the phone; no document (whether electronic or paper) ever changed hands.The Government would likely submit that this involves the ?documents? clause since the accusedhad a tangible item in front of him, even though he transmitted the information in a non?tangibleway. Again, the point is that there is not a clear dividing line between ?documents? and?information? under the Government?s reading of 8 U.S.C. 793(e).Hypothetical 3: On Day 1, the accused reads a two?sentence classi?ed memo which hememorizes (he does not physically or electronically retain the memo). On Day 2, the accusedcommunicates the two?sentence classi?ed memo verbatim, from memory, to someone notauthorized to receive it. In this scenario, it is likely that all would agree that this implicates theso-called ?information?/?intangible? clause of I 8 U.S.C. Section 793(e) since the accused orallycommunicated information that was stored, so to speak, in his memory bank. In this scenario,should the accused bene?t from a better mens rea (?reason to believe?) than if he had simplyhanded the memo to that same unauthorized person on Day 1?I9. The point of canvassing these various hypotheticals is to show that the interpretationadvanced by the Government of the section is fundamentally ?awed. The distinction between?documents? and ?information? is an untenable one. Further complicating the matter is thatcourts have introduced an equally unhelpful proxy? ?tangible?/?intangible? ?to figure outwhether something falls within the ?documents? or ?information? clause of l8 U.S.C. Section793(e). There is no principled reason why the following scenarios should be treated differently:(I) The accused hands a one page hard copy classi?ed document to someone notauthorized to receive it;(2) The accused emails a one-page electronic copy of a classi?ed document to someonenot authorized to receive it;(3) The accused reads a one-page hard copy classi?ed document over the phone tosomeone not authorized to receive it;(4) The accused reads a one-page electronic copy of a classi?ed document over thephone to someone not authorized to receive it;(5) The accused memorizes the one-page document, later writes down the information,and gives the hand-written document to someone not authorized to receive it;(6) The accused memorizes the one-page document and, based on memory, relays theinformation to someone not authorized to receive it.And yet, under the wholly unworkable ?documents??/?information? framework being set up bythe Government, it is likely that these scenarios would, in fact, be treated differently-??notbecause one scenario is fundamentally different than another scenario, but because of an arti?cialconstruct of labeling something as a ?document? or ?information.? Should the mens rea of anoffense which carries with it l0-years imprisonment be subject to a technical classi?cation whichis largely illusory? The Defense submits that a criminal statute?s scienter requirement should notturn on such ?ne, not to mention arbitrary, distinctions.CONCLUSION20. For foregoing reasons, the Defense respectfully requests that this Court deny theGovernment?s requested relief.Respectfully submitted, Xv? .Jr I DAVID E. Civilian Defense Counsel


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