Title: Def Motion for Directed Verdict: Art 104, 4 Jul 13

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATES DEFENSE MOTION FORv. DIRECTED VERDICT:ARTICLE 104MANNING, Bradle E., PFC U.S. Army, Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer-Henderson Hall, DATED: 4 July 2013Fort Myer, VA 22211 RELIEF SOUGHT1. COMES NOW PFC Bradley E. Manning, by counsel, pursuant to applicable case law andRule for Courts Martial (R.C.M.) 9 requests this Court to enter a ?nding of not guilty as tothe Speci?cation of Charge 1.STANDARD2. A motion for a ?nding of not guilty should be granted when, viewing the evidence in the lightmost favorable to the prosecution, there is an ?absence of some evidence which, together with allreasonable inferences and applicable presumptions, could reasonably tend to establish everyessential element of an offense charged.? R.C.M. 9l7(d).ARGUMENT3. In the Court?s ruling on the Defense motion to dismiss the Article 104 offense for failure tostate an office, the Court indicated:If. at trial, the Government does not prove the accused knew that by giving intelligenceby indirect means, he actually lcnew he was giving intelligence to the enemy, the Courtwill entertain appropriate motions. Appellate Exhibit 81.The Government has failed to adduce evidence which, together with all reasonable inferencesand applicable presumptions, shows that PFC Manning had ?actual knowledge? that by givinginformation 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%PAGE REFER PAGE PAGES ?Knowingly? requires actual knowledge by the accused that by giving theintelligence to the 3rd party or intermediary or in some other indirect way, that hewas actually giving intelligence to the enemy through this indirect means. Thisoffense requires that the accused had a general evil intent in that the accused hadto know he was dealing, directly or indirectly, with an enemy of the United States.?Knowingly? means to act voluntarily or deliberately. A person cannot violateArticle 104 by committing an act inadvertently, accidentally, or negligently thathas 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 theenemy 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 usesthe WikiLeaks website. In fact, Mr. Moul, who trained PFC Manning, testi?ed that he had neverheard 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 aboutwere social networking sites such as acebook. See Testimony of CPT Fulton. None of theevidence elicited by the Government regarding PFC Manning?s training, construed in the lightmost favorable to the Government, shows that PFC Manning had the actual knowledge that isrequired under Article 104. Similarly, the Government has introduced no evidence to suggestthat PFC Manning was somehow independently aware that the enemy uses WikiLeaks. Mr.Johnson testified that his forensic investigation of PFC Manning?s computer revealed nosearches for the enemy, anything related to terrorism, or anything remotely anti?American. SeeTestimony of Mr. Johnson.6. The Government also attempts to show that PFC Manning had actual knowledge that theenemy uses WikiLeaks by evidence and testimony related to the Army Counter?IntelligenceCenter (ACIC) report charged in Speci?cation 15 of Charge II. The Government has adducedforensic evidence that PFC Manning?s computer accessed the report multiple times betweenDecember of 2009 and April of 2010. The Government seeks to use the ACIC report to showthat PFC Manning had actual knowledge that the enemy uses WikiLeaks and therefore, that bygiving information to WikiLeaks, PFC Manning was giving information to the enemy. TheGovemment?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 IntelligenceServices, Insurgents, or Terrorist Groups?? The question mark obviously denotes that thequestion is something that the U.S. government does not have an answer to. If the governmenthad 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 TerroristGroups.? without a question mark. If the U.S. government does not have actual knowledge ofthe 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 mustalso be presumed that foreign adversaries will review and assess any sensitive or classi?edinformation posted to the Wikileaks.org Web site.? See ACIC Report. The very nature of apresumption is that a person does not know whether something is true or not true. The fact thatPFC 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 theACIC document under the section entitled ?lntelligence Gaps.? In the ACIC document, theauthor readily admits that an intelligence gap is ?Will the Wikileaks.org Web site be used byFIS S, foreign military services, foreign insurgents, or terrorist groups to collect sensitive orclassi?ed US army information posted to the Wikileaks.org Web site?? Ms. Glenn con?rmedthat an intelligence gap is something that is not able to be con?rmed, or it would not be listed inthat section. See Testimony of Ms. Glenn. Additionally, multiple unit witnesses testi?ed duringthe Govemment?s case that an intelligence gap is something that we do not have actualknowledge of If one had actual knowledge of something, it would not be called an intelligencegap.10. The Government also introduced testimony from Mr. Lamo where the Government sought tointroduce various of PFC Manning?s admissions. During cross-examination of this Governmentwitness, the Defense elicited (and the Government did not dispute) evidence as to PFCManning?s state of mind. At one point, Mr. Lamo asked PFC Manning why he did not sell theinformation to a foreign government and ?get rich off In response, PFC Manning expresslydisclaimed any intent to help any enemy of the United States:[B]ecause it?s public data . . . it belongs in the public domain . . . infonnationshould be free . . . it belongs in the public domain . . . because another state wouldjust take advantage of the information . . . try and get some edge . . . if it?s out inthe open . . . it should be a public good.See Prosecution Exhibit 30. PFC Manning?s state of mind and professed motive for releasing thecharged documents to WikiLeaks belies any argument that PFC Manning had actual knowledgethat by giving information to WikiLeaks, he was giving information to the enemy. Indeed, PFCManning 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 notintend 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 afterthe fact. During these times, PFC Manning never once mentioned AQ, AQAP, UBL, AdamGadahn, 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 gettingcertain information to the American public in order to hopefully spark change and reform. Thereis, simply put, no evidence before this Court that PFC Manning ever possessed the ?general evilintent? that must be shown in order to sustain a ?nding of guilt under Article 104. At most, the 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 anArticle 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 inaiding the enemy inadvertently, accidentally, or Accordingly, the Article 104offense must be dismissed.CONCLUSION12. In light of the foregoing, the Defense requests this Court grant the requested R.C.M. 917motion for Charge I (the Article 104 offense).Respectfully submitted,DAVID EDWARD COOMBSCivilian Defense Counsel


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