Title: US v. Pfc Manning Appeal

Document Date: 2016-05-18

Text: IN THE UNITED STATES ARMY
COURT OF CRIMINAL APPEALS

UNITED STATES,

Appellee

v.

Private First Class (E-3)
CHELSEA E. MANNING,

United States Army,

Appellant

RECEIVED
CLERK OF COURT

BRIEF ON BEHALF^ftrfMpPELSNi 22

US ARMY JUDICIARY

Docket No. ARMY 20130739

Tried at Fort Meade, Maryland,
on 23 February, 15-16 March,

24- 26 April, 6-8, 25 June, 16-
19 July, 28-30 August, 2, 12,
and 17-18 October, 7-8, and 27
November-2, 5-7, and 10-11
December 2012, 8-9 and 16
January, 26 February-1, 8
March, 10 April, 7-8 and 21
May, 3-5, 10-12, 17-18 and 25-
28 June, 1-2, 8-10, 15, 18-19,

25- 26, and 28 July-2, 5-9, 12-
14, 16, and 19-21 August 2013,
before a general court-martial
appointed by Commander, United
States Army Military District
of Washington, Colonel Denise
Lind, Military Judge,
presiding.

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES
ARMY COURT OF CRIMINAL APPEALS

Assignments of Error
I.

WHETHER THIS COURT SHOULD DISMISS ALL CHARGES, OR ALTERNATIVELY,
AWARD MORE SENTENCING CREDIT, WHERE THE MILITARY JUDGE FOUND
MULTIPLE VIOLATIONS OF ARTICLE 13, UCMJ, BUT FAILED TO CONSIDER
THAT PFC MANNING WAS IN SOLITARY CONFINEMENT FOR APPROXIMATELY
NINE MONTHS WHILE STRUGGLING WITH SEVERE MENTAL ILLNESS? ... 6

1. PFC Manning's confinement conditions were tantamount to
solitary confinement ......................................

17

2. The military judge failed to consider that PFC Manning
suffered from serious mental illness while in solitary
confinement ..............................................

20

3. Dismissal is warranted under these facts, or alternatively,
at least 10-to-1 sentencing credit.............................22

II.

WHETHER THE MILITARY JUDGE MISINTERPRETED THE DEFINITION OF
"EXCEEDS AUTHORIZED ACCESS" IN THE COMPUTER FRAUD AND ABUSE ACT,
18 U.S.C. § 1030(a)(1) (SPECIFICATION 13 OF CHARGE II)? . . . .24

1. The meaning of "exceeds authorized access" is ambiguous . .33

2. Neither the statutory history nor the case law unambiguously

supports the military judge's interpretation of the CFAA . . .36

A. The legislative history does not support the military

judge's interpretation of the statute ......................... 38

B. The case law does not support the military judge's

interpretation of the phrase "exceeds authorized access" . . .41

3. The rule of lenity requires dismissal of the charge and

specification ................................................. 45

III.

WHETHER THE EVIDENCE WAS LEGALLY AND FACTUALLY SUFFICIENT TO
SUSTAIN PFC MANNING'S CONVICTIONS FOR VIOLATIONS OF 18 U.S.C. §
641 (SPECIFICATIONS 4, 6, 8, 12, AND 16 OF CHARGE II)? . . . . 46

III.A.

WHETHER THE EVIDENCE WAS LEGALLY AND FACTUALLY SUFFICIENT TO
SUSTAIN PFC MANNING'S CONVICTIONS FOR STEALING, PURLOINING, OR
CONVERTING "DATABASES" (SPECIFICATIONS 4, 6, 8, AND 12 OF CHARGE
II) WHERE THERE WAS NO EVIDENCE THE ACTUAL DATABASES WERE STOLEN,

PURLOINED, OR CONVERTED? ...................................... 50

1. A "database" is a form of property distinct from records,
copies of records, and the information therein.................55

A. The plain meaning of the term "database" confirms it is
distinct from "information," "records," or "copies" ...........55

il

B. Federal case law establishes the theft of "information,"

"records," and "copies" are separate offenses ............... 59

C. Changing the nature of the property stolen or converted

after the presentation of evidence irreparably prejudiced PFC
Manning's defense ............................................ 62

2. The evidence fails to prove PFC Manning stole or converted
databases .....................................................69

A. There is no evidence PFC Manning seriously and

substantially interfered with the government's property rights
in the databases...............................................70

B. Even if "information" and "records" are necessarily

included in the definition of "database," the government failed
to present evidence PFC Manning stole or converted information
or records ....................................................72

III.B.

WHETHER THE EVIDENCE WAS LEGALLY AND FACTUALLY SUFFICIENT TO
SUSTAIN PFC MANNING'S CONVICTION FOR STEALING, PURLOINING, OR
CONVERTING THE "USF-I GAL" (SPECIFICATION 16 OF CHARGE II)? . .76

1. There is no evidence PFC Manning stole or purloined "the USF-

I GAL," or "a portion of" it...................................82

2. Even if the evidence is sufficient to support a finding PFC

Manning possessed "a portion of" the USF-I GAL, the military
judge's amendment of the specification at the eleventh hour
severely prejudiced PFC Manning's defense .................... 85

A. The amended specification alleged a different offense.87

B. The amended specification caused unfair surprise, denied

PFC Manning notice of the charge against her, and hindered her
defense preparation ...........................................88

3. There is no evidence PFC Manning's possession of email

addresses was "wrongful" or with the "intent to deprive" . . .91

4. The government failed to prove the email addresses on PFC

Manning's computer were of a value greater than $1,000 . . . .94

iii

III.C.

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ADMITTING
TESTIMONY FROM THE GOVERNMENT'S COUNTERINTELLIGENCE EXPERT ON THE
VALUE OF THE INFORMATION AT ISSUE IN SPECIFICATIONS 4, 6, 8, 12
AND 16 OF CHARGE II?...........................................99

1. Mr. Lewis' testimony did not meet a single Houser or Daubert
factor........................................................116

A. Mr. Lewis was not qualified to value information . . 116

B. The subject matter of Mr. Lewis' testimony exceeded his

qualifications .............................................. 123

C. The information underlying Mr. Lewis' opinion was not of

the type a relevant expert would reasonably rely upon . . . .123

D. Mr. Lewis' opinion was not relevant because it was not

reliable......................................................126

E. Mr. Lewis' valuation method failed the Daubert

reliability standard and lacked "alternative indicia of
reliability" ................................................ 127

F. The probative value of Mr. Lewis' testimony was minimal

and outweighed by its prejudicial effect ....................133

2. The admission of Mr. Lewis' testimony materially prejudiced a
substantial right of PFC Manning ........................... 134

IV.

WHETHER 18 U.S.C.§ 793(e) VIOLATES THE DUE PROCESS CLAUSE AND

FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION?...........135

1. 18 U.S.C. § 793(e) is unconstitutionally vague............137

2. 18 U.S.C. § 793(e) is unconstitutionally overbroad . . . .139

V.

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ADMITTING
SENTENCING TESTIMONY UNDER R.C.M. 1001(b)(4) NOT "DIRECTLY
RELATING TO OR RESULTING FROM THE OFFENSES"...................141

iv

1. The military judge considered evidence of speculative harm

that did not in fact occur....................................144

A. Brigadier General Carr speculated adversaries "could"

use the CIDNE SIGACTS, but provided no indication they in fact
did so .......................................................144

B. Commander Yousef Aboul-Enein speculated Al Qaeda "could"

use the WikiLeaks disclosures.................................152

2. The military judge considered evidence of insufficiently
specific harm, tenuously connected to PFC Manning's offenses.157

3. The military judge considered evidence of the government's

efforts to mitigate speculative future harm..................162

4. The military judge considered evidence of events that were

not "directly relating to or resulting from" PFC Manning's
offenses because her offenses were not the "but-for" cause of
those events..................................................165

5. The military judge's repeated consideration of inadmissible

aggravation evidence substantially influenced PFC Manning's
adjudged sentence.............................................169

VI.

WHETHER THIS COURT SHOULD EXERCISE ITS BROAD POWERS TO READJUDGE
A FAIR SENTENCE IN LIGHT OF THE NUMEROUS APPELLATE ERRORS AND THE
OVERALL UNFAIRNESS OF THE ADJUDGED SENTENCE?..................171

TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES

U.S. Constitution

First Amendment..............................................139

Fifth Amendment............................................53,54

Sixth Amendment...............................................53

Eighth Amendment.........................................7,18,23

v

Case Law

Supreme Court of the United States

Apprendi v. New Jersey, 53 0 U.S. 466 (2000)..................... 54

Burrage v. United States, 134 S. Ct. 881 (2014).................

........................................................ 166, 167, 168

Cole v. Arkansas, 333 U.S. 196 (1948).............................54

Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). . . .passim

Dunn v. United States, 442 U.S. 100 (1979)....................... 53

General Elec. Co. v. Joiner, 522 U.S. 136 (1997)............ 127

Jackson v. Virginia, 443 U.S. 307 (1979)....................... 49

Johnson v. United States, 135 S. Ct. 2551 (2015)........ 138,139

Kolender v. Lawson, 461 U.S. 352 (1983)........................ 137

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). . 114,115,132

Morisette v. United States, 342 U.S. 246 (1952).............. 70,73

Payne v. Tennessee, 501 U.S. 808 (1991)........................ 143

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224
(2007)........................................................... 44

United States v. Paroline, 134 S. Ct. 1710 (2014)..............160

United States v. Santos, 553 U.S. 507 (2008).................. 40

United States v. Williams, 553 U.S. 285 (2008)............... 139, 140

Court of Appeals for the Armed Forces

United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009)........... 142

United States v. Atchak, 75 M.J. 193 (C.A.A.F. 2016)............32

United States v. Avila, 53 M.J. 99 (C.A.A.F. 2000)............. 18

United States v. Ayala, 43 M.J. 296 (C.A.A.F. 1995). . . 142,146

vi

United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005)........... 179

United States v. Berry, 61 M.J. 91 (C.A.A.F. 2005)............ 134

United States v. Billings, 61 M.J. 163 (C.A.A.F.

2005)................................................... 127,132,133

United States v. Birdsall, 47 M.J. 404 (C.A.A.F. 1998). . . .123

United States v. Dimberio, 56 M.J. 20 (C.A.A.F. 2001). . . . 126

United States v. Disney, 62 M.J. 46 (C.A.A.F. 2005)............ 137

United States v. Ellis, 68 M.J. 341 (C.A.A.F. 2010)............ 114

United States v. Flesher, 73 M.J. 303 (C.A.A.F.

2014).............................................. 122,123, 127,128

United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011).............54

United States v. Gordon, 31 M.J. 30 (C.M.A. 1990).............. 143

United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999) . . 115, 127

United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005)........... 169

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982)............4

United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015). .147,148

United States v. Gunkle, 55 M.J. 26 (C.A.A.F. 2001)............ 134

United States v. Hardison, 64 M.J. 279 (C.A.A.F.

2007)................................................... 143, 150, 169

United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). . . . 166

United States v. Houser, 36 M.J. 392 (C.M.A. 1993). . . . passim

United States v. Jones, 44 M.J. 103 (C.A.A.F. 1996). . . 147,148

United States v. King, 61 M.J. 225 (C.A.A.F. 2005). .15,17,19,23

United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999)............. 180

United States v. McCarthy, 47 M.J. 162 (C.M.A. 1997).......... 17

vii

United States v. Mervine, 26 M.J. 482 (C.M.A. 1988)

64

United States v. Parker, 59 M.J. 195 (C.A.A.F. 2003)........... 86

United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001)........... 40

United States v. Roa, 12 M.J. 210 (C.M.A. 1982)................ 140

United States v. Rust, 41 M.J. 472 (C.A.A.F. 1995)........... 143

United States v. Sanchez, 65 M.J. 145 (C.A.A.F.

2007).............................................. 113,114,115,127

United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013)........... 33

United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. 2015). . 44

United States v. Snelling, 14 M.J. 267 (C.M.A. 1982)......... 180

United States v. Sullivan, 42 M.J. 360 (C.A.A.F.

1995)......................................................... 87, 88

United States v. Teters, 37 M.J. 370 (C.M.A. 1993)............. 40

United States v. Turner, 25 M.J. 324 (C.M.A. 1987)............. 49

United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000). . . . 33

United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014).............32

United States v. Wacha, 55 M.J. 266 (C.A.A.F. 2001)............ 183

United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003)). . . . 137

United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002). . . 49

United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013). . .179

United States v. Williams, 75 M.J. 129 (C.A.A.F. 2016). . . .169

United States Courts of Appeals

Chappell v. United States, 270 F.2d 274 (9th Cir. 1959) . . . .65

Churder v. United States, 387 F.2d 825 (8th Cir. 1968). . . .129

Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir. 1988). . . . 18

United States Courts of Appeals

viii

EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st
Cir. 2001).......................................................34,35

Redman v. John D. Brush & Co., 111 F.3d 1174 (4th Cir. 1997). .

...............................................................122,124

Wec Carolina Energy Solutions LLC v. Miller, 687 F.3d 199

(4th Cir. 2012)...............................................33,34,43

Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals,

Inc., 254 F.3d 706 (8th Cir. 2001)............................... 121

Wilkerson v. Goodwin, 774 F.3d 845 (4th Cir. 2014)..................18

United States v. Collins, 56 F.3d 1416 (D.C. Cir. 1995). . . .70

United States v. DiGilio, 538 F.2d 972 (3rd Cir.

1976).................................................. 60, 61,75, 96

United States v. Girard, 601 F.2d 69 (2nd Cir. 1979). . . .56, 60

United States v. Jeter, 775 F.2d 670 (6th Cir. 1985). . . .61,98

United States v. John, 597 F.3d 263 (5th Cir. 2010). . . . 33,35

United States v. Jones, 597 F.3d 263 (5th Cir. 2010)............. 33

United States v. Jordan, 582 F.3d 1239 (11th Cir. 2009). . . .61

United States v. Kueneman, No. 94-10566, 1996 U.S. App. LEXIS

21810 (9th Cir. Aug. 20, 1996).................................. 71

United States v. May, 625 F.2d 186 (8th Cir. 1980)............... 71

United States v. Miller 767 F.3d 585 (6th Cir. 2014).............167

United States v. Mlorison, 844 F.2d 1057 (4th Cir. 1988). 138,140

United States v. Nosal, 676 F.3d 854 (9th Cir.

2012).................................................. 32,34,35, 42

United States v. Rodriguez, 628 F.3d 1258 (11th Cir.

2010)........................................................... 34,35

United States v. Tobias, 836 F.2d 449 (9th Cir.

1988)..................................................... 56, 60, 65

ix

United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir.

1980)..................................................... 60, 65, 75

United States v. Valle, 807 F.3d 508 (2d Cir. 2015)...........34

United States v. Wilson, 284 F.2d 407 (4th Cir. 1960). . . . 116

United States District Courts

Arista Records, LLC v. Lime Group, LLC, No. 06 CV 5936, 2011
U.S. Dist. LEXIS 47416 (S.D.N.Y. Apr. 29, 2011)................ 129

Giles Construction, LLC v. Tooele Inventory Sol., Inc., 2015
U.S. Dist. LEXIS 72722 ......................................... 41

Indiana Prot. & Advocacy Servs. Comm'n v. Momm'r, Indiana Dep't
Of Correction, 2012 U.S. Dist. LEXIS 182974 (S.D. Ind. Dec.

31, 2012)........................................................20

Jones 'EL v. Berge, 164 F.Supp. 2d 1096 (W.D. Wis. 2001). . . 21

Kolokowski v. Crown Equip. Corp., No. 05-4257, 2009 U.S. Dist.
LEXIS 77474 (D.N.J. Aug. 27, 2009)............................129

Louis Vuitton Malletier v. Dooney & Bourke, Inc., 525 F. Supp.

2d 558 (S.D.N.Y. 2007).........................................129

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).............21

Ortiz v. Yale Materials Handling Corp., No. 03-3657, 2005 U.S.
Dist. LEXIS 18424 (D.N.J. Aug. 24, 2005).......................129

United States v. Kim, 808 F. Supp. 2d (D.D.C. 2011)............ 138

United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006),

aff'd on other grounds, 557 F.3d 192 (4th Cir. 2009)............ 138

State Court

Irving Trust Co. v. Leff, 171 N.E. 569 (N.Y. 1930).............. 73

Courts of Criminal Appeals

United States v. Amaro, 2009 CCA LEXIS 235 (A.F. Ct. Crim. App.
16 June 2009)....................................................18

United States v. Barber, 27 M.J. 885 (A.C.M.R. 1989) . . .157,160

x

United States 30 Apr. 1999). v. Bauer, 1999 CCA LEXIS 117 (A.F. Ct. Crim. App. 150,151
United States 2003) v. Billings, 58 M.J. 861 (Army Ct. Crim. App. 49
United States App. 2013). . v. Caporale, 73 M.J. 501 (A.F. Ct. Crim. 137
United States 2000) v. Fulton, 59 M.J. 767 (A.F. Crim. Ct. App. 22
United States v. Hobbs, 42 C.M.R. 870 (A.C.M.R. 1970). . . . 169
United States v. James, 64 M.J. 514 (C.G. Ct. Crim. App. 2006). 143,157
United States 1994) v. Longmire, 39 M.J. 536 (Army Ct. Crim. App. 86
United States v. Schempp, ARMY 20140313, 2016 CCA LEXIS 147

(Army Ct. Crim. App. 2 6 Feb. 2 016)...............................93

United States 454 (Army Ct. v. Shamburger, ARMY 20030753, 2004 CCA LEXIS Crim. App. 20 Dec. 2004) 169
United States 2004) v. Stapp, 60 M.J. 795 (Army Ct. Crim. App. 164,165
United States 1999) v. Starr, 51 M.J. 528 (A.F. Ct. Crim. App. 33,36
United States 2015) v. Stevens, 75 M.J. 548 (N.M. Ct. Crim. App. 65,73
United States 25 Feb. 2016) v. Taylor, 2016 CCA LEXIS 108 (A.F. Ct. Crim. App. 139
United States 191 (1954). . v. Walters, 4 U.S.C.M.A. 617, 16 C.M.R. 169
United States Ct. Crim. App v. Williams, M.J. , 2016 CCA LEXIS 195 (Army 30 Mar. 2016) passim
United States 1985). . . . v. Witt, 21 M.J. 637 (A.C.M.R. 143,152,165

xi

Statutes

Uniform Code of Military Justice

Article 13.................................................passim

Article 59(a).............................................134,169

Article 66(c) 49

Article 92..................................................1,175

Article 104 ......................................... 172,174,175

Article 120 ................................................25, 26

Article 121.................................................64,65

Article 134 .............................................. passim

United States Code

18 U.S.C. § 641...........................................passim

18 U.S.C. § 793(e)........................................passim

18 U.S.C. § 1030 (a)(1)...................................passim

18 U.S.C. § 1030 (e)(6)...................................passim

Manual for Courts-Martial, United States, 2012 Edition

M.R.E.

M.R.E.

M.R.E.

M.R.E.

R.C.M.

R.C.M.

R.C.M.

R.C.M.

R.C.M.

401..........

403 .........

702 .........

703 .........

603(a). . .
907(b) ( 1)(B)
917(d) . . .

918(a)(1). .
1001(b)(4).

...........126

. . . . passim

113,114,117,156
. .124,126,161

.............86

........... 26

........ passim

.............86

........ passim

xii

Introduction

This case arises from Private First Class (PFC) Chelsea E.
Manning's disclosure of classified information while serving as
an intelligence analyst (35F) in the S2 section of the 2d
Brigade Combat Team, 10th Mountain Division (2/10 MTN). She
deployed with 2/10 MTN to Forward Operating Base (FOB) Hammer,
Iraq in the fall of 2009. She remained there until May 2010. It
was around this time the Army discovered she had disclosed
classified documents, mostly diplomatic cables and significant
activity reports, to a whistleblower website called WikiLeaks.

For what PFC Manning did, the punishment is grossly unfair
and unprecedented. No whistleblower in American history has been
sentenced this harshly. Throughout trial the prosecution
portrayed PFC Manning as a traitor and accused her of placing
American lives in danger, but nothing could be further from the
truth.

PFC Manning disclosed the materials because under the
circumstances she thought it was the right thing to do. She
believed the public had a right to know about the toll of the
wars in Iraq and Afghanistan, the loss of life, and the extent
to which the government sought to hide embarrassing information
of its wrongdoing. At sentencing PFC Manning took responsibility
for the disclosures and admitted she should have considered

other lawful ways of expressing these concerns. But she was not

disloyal and did not harm anyone, nor did she intend to.

What PFC Manning did must be kept in context. She was
barely twenty years old when all this happened. Her early life
had been difficult—her mom was an alcoholic so PFC Manning was
essentially forced to raise herself. Highly intelligent, PFC
Manning wished to go to college but she lacked the money for it,
so like many others she enlisted in the Army to better her life
and pay for college.

A transgender woman, PFC Manning joined the military at a
time when the public and the military were still largely unaware
of what it means to be transgender (this is still true today).

By her own admission, PFC Manning joined the military to "fix"
what was "wrong with her." Because PFC Manning could not live
openly as a transgender woman, however, her mental and emotional
condition deteriorated, manifesting itself into depression,
anxiety and other personality disorders.

These conditions affected PFC Manning's ability to cope
with stress. Her stress was made worse by the mistreatment she
received from fellow Soldiers who thought she was gay. This led
to isolation, which further compounded her mental and emotional
distress.

The government's litigation strategy was to ignore all of
this, and to instead make an example of her. The overzealous

2

nature of the prosecution made the trial unmanageable, confused

the military judge, and caused a myriad of errors. This appeal
raises six assignments of error, all of which highlight the
government's win-at-all-costs approach to the prosecution.

First, as set forth in Assignment of Error I, the
government violated Article 13, Uniform Code of Military Justice
(UCMJ), by subjecting PFC Manning to unlawful pretrial
confinement for nearly a year. The military judge correctly
found Article 13 error, but did not fully credit PFC Manning for
the deplorable and inhumane conditions, which were tantamount to
solitary confinement. For this alone the charges and
specifications should be reversed or her punishment
substantially reduced.

Second, as set forth in Assignments of Error II, III, and
IV, the government overcharged the case to expose PFC Manning to
excessive punishment. This appeal challenges the convictions
related to 18 U.S.C. §§ 641, 1030(a)(1) and 793(e). Rather than
charging PFC Manning for mishandling classified information, a
charge she admitted to, the government charged her with stealing
databases (Section 641), using unauthorized software on a
classified computer system (Section 1030(a)(1)), and disclosing
classified information with knowledge it might harm the national
defense (Section 793(e)). As addressed below, the military judge
misapprehended and misapplied the law with respect to these

3

statutes, which unfairly inflated the penalty landscape.

Third, in Assignment of Error V, the defense challenges the
military judge's consideration of aggravation evidence that was
not directly related to or resulting from the offenses. And
finally, in Assignment of Error VI, the defense urges this Court
to exercise its broad powers to reconsider the appropriateness
of PFC Manning's sentence to confinement. These last two
Assignments of Error are at the core of PFC Manning's appeal.

This court possesses broad authority to correct unfair and
improper sentences. The defense urges this court to exercise
this power to correct perhaps the most unjust sentence in the
history of the military justice system. The Army's mantra is to
take care of its Soldiers, but the Army has not taken care of
PFC Manning. This court should do so. For the reasons described
more fully below, a ten-year confinement term will adequately
punish her, deter others, and allow her to receive the treatment
and care she needs.

Statement of the Case1

On the dates indicated in the caption, at Fort Meade,
Maryland, a military judge sitting as a general court-martial
convicted PFC Manning, pursuant to her pleas, of violating a

1 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.

1982), PFC Manning personally requests this court consider the
matters included in the Appendix.

4

lawful general regulation and conduct prejudicial to good order

and discipline and of a service discrediting nature (two
specifications), in violation of Articles 92 and 134, UCMJ, 10
U.S.C. §§ 892, 934 (2006).

Contrary to her pleas, the military judge convicted PFC
Manning of violating a lawful general regulation (four
specifications); violating 18 U.S.C. § 641 (five
specifications), 18 U.S.C. § 793(e)(six specifications), and 18
U.S.C. § 1030(a)(1) under clause 3 of Article 134; and conduct
prejudicial to good order and discipline and of a service
discrediting nature, in violation of Articles 92 and 134, UCMJ,
10 U.S.C. §§ 892, 934 (2006).

The military judge sentenced PFC Manning to total
forfeiture of pay and allowances, reduction to the grade of E-1,
confinement for thirty-five years, and a dishonorable discharge.
The military judge credited PFC Manning with 1,293 days of
confinement against the sentence to confinement. The convening
authority approved the sentence as adjudged and credited PFC
Manning with 1,293 days of confinement against the sentence to
confinement.

5

Assignments of Error

I.

WHETHER THIS COURT SHOULD DISMISS ALL CHARGES,
OR ALTERNATIVELY, AWARD MORE SENTENCING
CREDIT, WHERE THE MILITARY JUDGE FOUND
MULTIPLE VIOLATIONS OF ARTICLE 13, UCMJ, BUT
FAILED TO CONSIDER THAT PFC MANNING WAS IN
SOLITARY CONFINEMENT FOR APPROXIMATELY NINE
MONTHS WHILE STRUGGLING WITH SEVERE MENTAL
ILLNESS?

Introduction

The charges and specifications against PFC Manning should
be set aside and dismissed because of the cruel and unusual
nature of her pretrial confinement at Marine Corps Brig Quantico
(MCBQ).2 Alternatively, this court should award substantially
more than 112 days of sentencing credit—the credit the military
judge awarded—for the Article 13, UCMJ, and constitutional
violations.

The government restricted PFC Manning to solitary
confinement for nine months without any meaningful human contact
while awaiting trial. The government claimed these conditions
were necessary to safeguard PFC Manning. However, the evidence
indisputably shows brig officials knew of PFC Manning's already
poor and deteriorating mental health, transferred her to a brig
that was ill-suited to address her mental health needs, and

2 Private First Class Manning adopts the arguments raised in
Amnesty International's amicus brief on this topic.

6

purposefully kept her in solitary confinement over the
recommendation of the brig's own mental health professionals to
avoid unfavorable media attention. Federal courts have found
similar confinement conditions to violate the Eighth Amendment's
prohibition against cruel and unusual punishment. When the Eighth
Amendment is violated so too is Article 13.

As discussed below, 112 days of credit trivializes the harm
associated with placing a mentally ill inmate in solitary
confinement for several months. For this reason alone the
charges should be dismissed because such conduct is outrageous.

If this court believes dismissal is too drastic, however, the
defense urges it to at minimum award at least ten days of credit
for each day PFC Manning was in unlawful pretrial confinement at
MCQB.3

Statement of Facts4

On 29 May 2010, the Army placed PFC Manning in pretrial
confinement at FOB Hammer in Iraq for compromising classified
information. (App. Ex. 461 at 7). On 31 May 2010, the Army moved
her to the Theater Field Confinement Facility (TFCF) at Camp
Arifjan, Kuwait, where she remained until 29 July 2010. (App.

3 PFC Manning was held in pretrial confinement at MCQB for 264
days. A multiplier of 10-to-1 would provide 2640 days of credit,
or approximately 7 years toward the 35-year sentence.

4 The statement of facts is based on the military judge's ruling
finding Article 13 violations. These facts are not in dispute
unless expressly stated.

7

Ex. 461 at 7). She was assigned to medium custody with three to

six other detainees but then placed on one-to-one watch due to
suicide concerns. (App. Ex. 461 at 7). While there PFC Manning
exhibited signs of anxiety and admitted to being transgender.
(App. Ex. 461 at 7).

On 30 June 2010, PFC Manning was placed on suicide watch

after erratic behavior in her cell. (App. Ex. 461 at 7). On 1

July 2010 a provider "recommended that [PFC Manning] be

transferred to a facility with more resources for higher care,

evaluation, and treatment." (App. Ex. 461 at 9).

On 3 July 2010 . . . [the] Commanding Officer,

Expeditionary Medical Facility Kuwait formally
requested the Commander, Theatre Field
Confinement Facility to transfer [PFC Manning]
to a facility with a separate locked and
specialized psychiatric ward or psychiatric
nurses, both of which were required to manage
a case of this level of high risk and
complexity for any extended amount of time.

(App. Ex. 461 at 8).

In June and July 2010, PFC Manning saw the Army's mental
health providers several times. They reported seeing "increased
levels of regressive behavior," and noted she "appeared thin and
exhausted and sat almost the entire time with [her] knees pulled
against her chest, looking into space as she spoke." (App. Ex.
461 at 9). PFC Manning admitted "sleeping poorly" and
"experiencing mood swings." (App. Ex. 461 at 9). She was
proscribed medications for insomnia and recommended to be placed

8

on suicide watch. (App. Ex. 461 at 9). PFC Manning also informed

Army officials she had previously seen a psychologist for
obsessive-compulsive disorder, attention deficit hyperactive
disorder and generalized anxiety disorder. (App. Ex. 461 at 9).

Throughout July 2010 Army officials closely monitored PFC
Manning because of concerns she might commit suicide. (App. Ex.
461 at 10). On 21 July 2010 PFC Manning was provisionally
diagnosed with "Depressive Disorder [Not Otherwise Specified
(NOS)] requiring further time and observation to make a final
diagnosis." (App. Ex 461 at 10). On 28 July 2010 PFC Manning's
chief medical provider "prepared a summary of the mental health
condition and treatment . . . during her time in confinement at

TFCF. The Assessment for Axis 1 was anxiety disorder NOS,
depressive DO NOS (Provisional, R/oMDD, Probable Gender Identity
Disorder (by previous assessment). (App. Ex. 461 at 11). The
next day the Deputy Commander of TFCF wrote a memo stating PFC
Manning's mental state had "deteriorated" and recommended
"transfer to a facility with adequate specialized resources and
mental health professionals available to manage [her] case over
an extended period of time, which did not exist at the facility
in Kuwait." (App. Ex. 461 at 11).

The Army transferred PFC Manning to MCBQ on 29 July 2010.
(App. Ex. 461 at 11). Due to cutbacks, MCBQ was not equipped to
house PFC Manning. As the military judge explained:

9

[o]n or about June 2010, as a result of the
Base Realignment and Closure Act of 2005 (BRAC
2005), MCBQ was converted from a level 1
facility to a pretrial confinement facility.
Resourcing was cut 50%. MCBQ was not structured
to be a long-term pretrial confinement
facility. Post-trial prisoners could be held
at MCBQ for 30 days pending transfer. MCBQ was
not resourced to house pretrial detainees for
more than 180 days (see Pretrial Confinement
Zero Based Review - App. Ex. 280, volume 3 of
6, pages 00513119 and 00513073-88). Pretrial
detainees housed at MCBQ after July 2010 were
typically held from two weeks to three months.

MCBQ was not resourced for long term mental
health or other treatment programs. There were
no organic mental health assets. Pretrial
detainees at MCBQ after July 2010 were assigned
custody classification of either Maximum (MAX)
or Medium In (MDI). All pretrial detainees
regardless of custody level were housed in
individual cells in Special Quarters 1 (SQI)
that were 6' wide by 8' long and 8' high. The
accused was housed in the same sized cell as
all the other pretrial detainees at MCBQ
regardless of custody level and status. During
the 264 days the accused was in pretrial
detention at MCBQ, the brig averaged between 5
and 20 prisoners staying a length of two weeks
to approximately three-four months. No other
prisoner during [PFC Manning's] tenure at MCBQ
was on [Prevention of Injury (POI)] status
longer than a few weeks.

(App. Ex. 461 at 11)(emphasis added).

According to the military judge, the MCBQ's "approach to
maintaining [PFC Manning] on POI status was to err on the side
of caution and even over-caution" because of the military's
concerns about suicide. (App. Ex. at 12). Prior to PFC Manning's
arrival at MCBQ, brig officials notified the convening authority

10

about "MCBQ's lack of resources for long-term pretrial

detainees." (App. Ex. 461 at 11).

On 29 July 2010 the brig rated PFC Manning's classification
level as MDI (or medium custody) but the brig duty supervisor
overrode the decision and placed her in Suicide Risk (SR)/POI.

(App. Ex. 461 at 13). Importantly, brig staff were "aware PFC
Manning was a high profile detainee who would bring media and
other attention to (sic) Quantico brig and case." (App. Ex. 461
at 12). To further this point, on 9 August 2010—shortly after
PFC Manning's arrival—the base commander, Lt Gen George J.

Flynn, forwarded a New York Times article concerning the suicide
of a former high profile inmate, stating "the command needed to
cover down on lessons learned from that case." (App. Ex. 461 at
12). He "stressed the absolute necessity of keeping a close
watch on the accused to include brig, medical, chaplain, and
transport personnel." (App. Ex. 461 at 12).

On 9 August 2010 PFC Manning's mental health provider-who
senior brig staff distrusted5-recommended downgrading PFC
Manning's status from SR. (App. Ex. 461 at 12). The brig
commander questioned the recommendation, which further led to a
breakdown in the relationship between brig leadership and the

5 Their distrust stemmed from a belief the medical officer had
missed indicators for suicide risk in a prior high profile case.
(App. Ex. 461 at 12).

11

big provider. "There was no meaningful communication between
[brig leadership] and [the mental health provider] regarding
[PFC Manning's] mental health condition and what, if anything,
that condition and [her] behaviors contributed to the necessity
of maintaining [her] on POI status." (App. Ex. 461 at 14).

While on POI status, PFC Manning was prevented from any
meaningful human contact and subjected to unusually harsh and
unnecessary conditions. For example, she was restricted to her
cell except for exercise (which was no more than an hour, and
most of the time less than 20 minutes) and limited calls (i.e.,
sunshine, television, library, etc.). (App. Ex. 461 at 15). Brig
guards monitored PFC Manning at all times and for all practical
purposes prohibited her from engaging in any social contact with
other inmates. (App. Ex. 258 at 8).6 When PFC Manning left her
cell the brig prohibited her from having contact with any other
detainees. (App. Ex. 258 at 8). She was allowed occasional non-
contact visitors during limited hours on weekends and holidays
and only permitted contact visits with counsel. (App. Ex. 461 at
16).

6 This is a topic of dispute. The military judge states that PFC
Manning could talk in a low tone to inmates in adjacent cells,
but in reality the cells adjacent to PFC Manning were rarely
occupied and when PFC Manning attempted to speak to inmates
several cells over, guards stopped her. (App. Ex. 258 at 8).

12

PFC Manning had to sleep in her underwear, for virtually

the entire period of confinement at MCBQ had no personal items
in her cell, had to request toilet paper each time she used the
bathroom and soap each time she washed her hands. She could not
exercise in her cell, where she spent the vast majority of her
time. (App. Ex. 461 at 16). One of the most shocking aspects of
PFC Manning's confinement occurred during sunshine call, where:

[she was] brought to a small concrete yard,
about half to a third of the size of a
basketball court. PFC Manning would be
permitted to walk around the yard in hand and
leg shackles, while being accompanied by a Brig
guard at [her] immediate side (the guard would
have his hand on PFC Manning's back). Two or
three other guards would also be present
observing PFC Manning. PFC Manning would
usually walk in figure-eights or some other
pattern. [She] was not permitted to sit down
or stay stationary.

(App. Ex. 258 at 8).

Defense counsel complained of PFC Manning's conditions on
numerous occasions, and specifically requested a reduction from
MAX to MDI. (App. Ex. 461 at 17). The brig mental health
provider recommended downgrade from POI status in January 2011.

(App. Ex. 461 at 17). In January a heated exchange occurred
between brig staff and PFC Manning's provider. The provider
stated, "POI was not justified from a medical point of view" and
"told the brig staff to call POI something else if they wanted
to maintain the accused on that status for security reasons

13

because it was not warranted for psychiatric status." (App. Ex.

461 at 17). The brig commander stated PFC Manning "would remain
on POI status and that if keeping [her] on that status was
required to get [her] to trial, [that is] what they would do."
(App. Ex. 461 at 17).

Shortly thereafter, a new mental health provider was
assigned to MCBQ. The provider also found "PFC Manning had no
current suicidal thoughts or intent and that [she] was
psychologically cleared to come off POI status." (App. Ex. 461
at 17). He recommended that PFC Manning "did not need to be
segregated from the general population due to a treatable mental
disorder, and that [she] required routine further examination."
(App. Ex. 461 at 17).

Finally, also in January 2011 the brig commander ordered a

review of MCBQ to determine if it had the appropriate resources

to serve as a joint or regional pretrial confinement facility.

The review found in relevant part that MCBQ was
not resourced to house long-term pretrial
detainees for more than 180 days and was not
resourced to house high profile pretrial
detainees requiring maximum security and with
complex mental health issues. The zero based
review further recommended that (sic) the brig
policy provision changes: (1) the provision

mandating detainees in SR/POI status receive a
custody classification of MAX should be changed
to provide that custody and status evaluations
to be conducted separately; (2) clarify the
authority of a Medical Officer to determine
what protective measures are necessary based
on a mental health evaluation, and of a [Brig

14

Officer] to impose, or re-impose, additional
protective measures based on subsequent
behavior; (3) establish a separate [special
quarters] and general population quarters; and

(4) ensure that the [Brig Officer] returns
detainees to the appropriate conditions or
quarters when no longer considered to be
suicide risks by a Medical Officer. The
[procedures] should also state that, absent
additional factors, the [Brig Officer] may not
place, or return, a detainee to [suicide
prevention] status and impose associated
protective measures. Ultimately the zero based
review recommended the confinement facility at
MCBQ be closed.

(App. Ex. 461 at 21)(emphasis added).

The brig commander ignored all the medical providers'
recommendations and kept PFC Manning on POI status for another
three months until 20 April 2011, when she was transferred to
Joint Regional Confinement Facility (JRCF), Fort Leavenworth,
Kansas, where PFC Manning was classified MDI, immediately put
into population, and remained in that status through trial.
(App. Ex. 461 at 21).

Standard of Review

Whether the charges should be dismissed or more sentencing
credit granted under Article 13, UCMJ, involve mixed questions
of fact and law. United States v. King, 61 M.J. 225, 227
(C.A.A.F. 2005). This court "defer[s] to the findings of fact by
the military judge where those findings are not clearly
erroneous. However, [its] application of those facts to the
constitutional and statutory considerations, as well as any

15

determination of whether [PFC Manning] is entitled to credit for

unlawful pretrial punishment involve independent, de novo
review." Id.

Law and Argument

The factual record shows PFC Manning suffered from various
serious and persistent mental illnesses. The brig lacked the
resources to treat PFC Manning's conditions, so, to compensate
for the lack of resources and to avoid public scrutiny in the
unlikely event PFC Manning attempted suicide, the brig placed
her in solitary confinement because it was easier. Before PFC
Manning was transferred to MCBQ the government knew it lacked
the resources to meet PFC Manning's needs. The MCBQ expressed
these concerns to the convening authority, but they were
ignored.

Once a new medical provider who was trusted took over, the
brig commander relented and realized MCBQ was not suited to
detain PFC Manning, and that she should be transferred to
another facility. That facility immediately classified PFC
Manning in MDI status, which shows that the MCBQ classification
system was arbitrarily applied and more restrictive than
necessary to ensure PFC Manning's presence at trial. Finally,
PFC Manning did not benefit from any meaningful human contact
for the entire duration of her detention at MCBQ, which
exacerbated her condition.

16

"Article 13, UCMJ, prohibits two things: (1) the imposition

of punishment prior to trial, and (2) conditions of arrest or
pretrial confinement that are more rigorous than necessary to
ensure the accused’s presence for trial." Id. at 227. Under the
first prohibition, the intent to punish can be inferred from
whether the government lacked a legitimate purpose for the
confinement conditions. See United States v. McCarthy, 47 M.J.
162, 165 (C.M.A. 1997). Whereas under the second prohibition,
the court examines whether the conditions are so excessive as to
constitute punishment. See King, 61 M.J. at 227.

The military judge correctly found PFC Manning's Article 13
rights were violated. The ruling is wrong, however, because it
gives no consideration for the nine months PFC Manning spent in
solitary confinement while suffering from severe mental
illnesses. The military judge made two overarching errors with
respect to this issue. First, she found PFC Manning was not in
solitary confinement and second gave no consideration to the
effect the pretrial confinement had on PFC Manning while she was
suffering from severe mental illness.

1. PFC Manning's confinement conditions were tantamount to
solitary confinement.

The military judge erred when she found PFC Manning was not
placed in solitary confinement because she had "daily human
contact." (App. Ex. 461 at 23). In her ruling, the military

17

judge defined solitary as "alone and without human contact."
(App. Ex. 461 at 23). This is not the correct definition of
solitary confinement.

"A servicemember is entitled, both by statute and the
Eighth Amendment, to protection against cruel and unusual
punishment." United States v. Avila, 53 M.J. 99, 101 (C.A.A.F.

2000). Although solitary confinement is not a per se violation
of the Eighth Amendment, it is certainly a significant factor
this court should consider when fashioning an appropriate remedy
under Article 13.

Human contact does not itself address whether confinement
is solitary. "[I]solating a human being from other human beings
year after year or even month after month can cause a
substantial psychological damage, even if the isolation is not
total." Davenport v. DeRobertis, 844 F.2d 1310, 1313 (7th Cir.
1988). The constitutional interest in protecting detainees from
solitary confinement arises when they are subjected to "23 hour-
a-day in cell isolation, limited physical exercise, and limited
human interaction[.]" Wilkerson v. Goodwin, 774 F.3d 845, 855-56
(4th Cir. 2014). Solitary confinement can arise merely from
being placed in protective custody, which necessarily will
include contact with prison staff. United States v. Amaro, 2009
CCA LEXIS 235 (A.F. Ct. Crim. App. 16 June 2009).

18

The Court of Appeals for the Armed Forces (CAAF)

effectively addressed this issue in King. There, the Court
granted pretrial confinement credit where the accused was placed
in "segregation in a six-by-six, windowless cell." 61 M.J. at

228. "Placing King in a segregated environment with all the
attributes of severe restraint and discipline, without an
individualized demonstration of cause in the record, was so
excessive as to be punishment and is not justified by the
Barksdale AFB confinement facility space limitations." Id. at

229.

As in King, the MCBQ had no legitimate reason to hold PFC
Manning in segregation for months on end. The medical officers
made numerous recommendations to reduce her confinement
conditions. The brig commander ignored these recommendations
based on issues outside PFC Manning's control—the dysfunctional
relationship between the brig's medical and operational staff,
concerns over publicity, and the lack of resources. Just as King
found space limitations were not a justifiable reason to hold an
accused in segregation, PFC Manning's conditions were
unreasonable and baseless. The mere fact that the JRCF placed
PFC Manning in MDI immediately after transferring her from MCBQ
resolves whether her confinement conditions at MCBQ were
reasonable—they obviously were not because, had they been, the
JRCF would have classified her as a suicide risk too.

19

2. The military judge failed to consider that PFC Manning
suffered from serious mental illness while in solitary
confinement.

The military judge's ruling also misses the mark with
respect to the punishing effects solitary confinement can have
on detainees with serious mental health issues. The military
judge focused only on whether PFC Manning's mental health
condition warranted SR or POI status. While this is a relevant
consideration for Article 13, the military judge should have
also considered, as most courts do, the harm such practices can
have on inmates with serious mental illnesses.

Judge Tanya Pratt from the United States District Court for
the Southern District of Indiana explained the various harms
associated with this practice:

[T]here are three ways in which segregation is
harmful to prisoners with serious mental
illness. The first is the lack of social
interaction, such that the isolation itself
creates problems. The second is that the
isolation involves significant sensory
deprivation. The third is the enforced
idleness, permitting no activities or
distractions. These factors can exacerbate the
prisoners’ symptoms of serious mental illness.

This condition is known as decompensation, an
exacerbation or worsening of symptoms and
illness.

Indiana Prot. & Advocacy Servs. Comm'n v. Comm'r, Indiana Dep't
of Correction, 2012 U.S. Dist. LEXIS 182974, *38 (S.D. Ind. Dec.

31, 2012).

20

It is already well established that putting prisoners with

significant mental health illnesses in solitary confinement
constitutes cruel and unusual punishment. See, e.g., Madrid v.
Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995)(holding that policy of
placing mentally ill inmates in segregation constituted cruel
and unusual punishment); Jones 'El v. Berge, 164 F. Supp. 2d
1096, 1118 (W.D. Wis. 2001)("Credible evidence indicates that

Supermax is not appropriate for seriously mentally ill inmates
because of the isolation resulting from the physical layout, the
inadequate level of staffing and the customs and policies.").
These considerations played a major role in the United States
Department of Justice's recent decision to recommend broad
changes to the practice of placing certain inmates in solitary
confinement.

The Department believes that best practices
include housing inmates in the least
restrictive settings necessary to ensure their
own safety, as well as the safety of staff,
other inmates, and the public; and ensuring
that restrictions on an inmate's housing serve
a specific penological purpose and are imposed
for no longer than necessary to achieve that
purpose. When officials determine that an
inmate must be segregated from the general
population, that inmate should be housed in
safe, humane conditions that, ideally, prepare
the individual for reintegration into both the
general prison population and society at
large.7

7 U.S. Department of Justice Report and Recommendations
Concerning the Use of Restrict Housing, Final Report, January
2016. Available at

21

It is beyond dispute PFC Manning suffered from severe

mental illness while in pretrial confinement, and that brig

officials knew of her condition. She was diagnosed with a number

of conditions, including anxiety and depression. Her mental

condition deteriorated while confined, no doubt because of the

oppressive conditions. The military judge did not take any of

these factors into consideration when she awarded only 112 days

of confinement credit. Her analysis focused solely on whether

the confinement classification violated policy.

3. Dismissal is warranted under these facts, or alternatively,
at least 10-to-1 sentencing credit.

The court may, in the interest of justice, dismiss charges
to remedy Article 13 violations when warranted. See United
States v. Fulton, 59 M.J. 767, 769 (A.F. Crim. Ct. App. 2000).
When balancing the various competing interests in this case,
dismissal is the most appropriate remedy because no amount of
sentencing credit can cure the military's mistreatment of PFC
Manning. The relevant decision-makers knew PFC Manning suffered
from severe mental illness, acknowledged that she needed
specialized medical care, understood MCBQ lacked the resources
to provide appropriate care, and detained her there anyway. The

https://www.justice.gov/dag/file/815551/download (last accessed
10 May 2016).

22

government's interest in confining PFC Manning is far outweighed

by the constitutional prohibition against cruel and unusual
punishment.

If this court determines dismissal is not warranted, then
it should provide additional sentencing credit beyond the 112
days provided by the military judge. The awarded credit is
inadequate because it does not address the entire period of PFC
Manning's pretrial confinement at MCBQ (she was confined there a
total of 264 days); nor does it address the fact that PFC
Manning was in solitary confinement while suffering from serious
mental illness. In King the Court awarded 3-to-1 credit for an
Article 13 violation that was not nearly as serious as here. 61
M.J. at 229. The defense recommends a minimal credit of 10-to-1.
This would provide about seven years of sentencing credit, or
about one-fifth of the adjudged confinement of thirty-five
years.

Conclusion

The record provides more than enough evidence to establish
that the brig's treatment of PFC Manning not only violated the
Eighth Amendment and Article 13, but also was outrageous and
completely unjustified. The conviction should be reversed and
charges and specifications dismissed.

23

II.

WHETHER THE MILITARY JUDGE MISINTERPRETED THE
DEFINITION OF "EXCEEDS AUTHORIZED ACCESS" IN
THE COMPUTER FRAUD AND ABUSE ACT, 18 U.S.C. §
1030(a)(1)(SPECIFICATION 13 OF CHARGE II)?

Introduction8

Private First Class Manning was convicted under clause 3 of
Article 134, UCMJ, of one specification of violating 18 U.S.C. §
1030(a)(1) of the Computer Fraud and Abuse Act (CFAA) by using a
software program called W-get9 on a classified computer to search
for and download diplomatic cables maintained in a State
Department database. (Specification 13 of Charge II). Section
1030(a)(1) of the CFAA requires proof that an accused obtained
classified information from a computer "without authorization"
or in "excess of authorized access."10 The government alleged PFC
Manning "exceeded authorized access" by using W-get in a manner
that was contrary to Army policy. (App. Ex. 609 at 6).

The defense challenged the government's interpretation of
the statute, arguing it was required to prove PFC Manning had no

8 Private First Class Manning adopts the Electronic Frontier
Foundation's amicus brief on this issue.

9 W-get is a "free software package for retrieving files using
HTTP, HTTPS and FTP, the most widely used Internet protocols."
GNU Operating System. Available at

https://www.gnu.org/software/wget/ (last accessed 7 May 2016).

10 The CFAA defines "exceeds authorized access" as "access[ing] 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 alter." 18 U.S.C. § 1030(e)(6).

24

right of access to the cables, at all, under any circumstance.

(App. Ex. 609 at 5). Her use of W-get was irrelevant.

At trial the defense also presented substantial evidence
showing the Army lacked a clear, enforceable policy against the
use of software programs like W-get on classified computers, and
that PFC Manning was never made aware of the restrictions. (App.
Ex. 595 at 10-14).

Had the military judge correctly applied the well-
established law of this and higher courts with respect to the
rule of lenity, PFC Manning would not have been convicted of
violating 18 U.S.C. § 1030(a)(1). This court has strictly
applied the rule of lenity in similar cases, making clear that
any ambiguity concerning a statute's meaning "must be resolved

in favor of the accused." United States v. Williams, M.J. ,

2016 CCA LEXIS 195, *10 (Army Ct. Crim. App. 30 Mar.

2016)(emphasis in original)(finding the word "exposure" in
Article 120, UCMJ, to be ambiguous and resolving in favor of the
accused).

Without question the military judge adopted an overly broad
definition of "exceeds authorized access." In fact, the military
judge's broad reading of the statute is not supported by the
legislative history of the statute or the decision of any court
in the country. See id. at *13 ("In the absence of unambiguous
legislative intent or clear precedential legal support to apply

25

an expansive reading to the plain language of Article 120(n),
UCMJ, we find the evidence legally insufficient to sustain a
conviction for indecent exposure."). The ruling subjected PFC
Manning to an additional ten years of confinement and
dramatically changed the sentencing landscape, which directly
contributed to the grossly excessive sentence. As shown below,
PFC Manning's use of W-get cannot by itself establish that she
"exceeded authorized access" within the meaning of the CFAA.

Statement of Facts

In Specification 13 of Charge II, the government charged
PFC Manning under clause 3 of Article 134 with violating 18
U.S.C. § 1030(a)(1) for knowingly exceeding authorized access on
a Secret Internet Protocol Router Network (SIPR) computer in
order to obtain classified cables maintained in a State
Department database. (Charge Sheet). At the time of referral,
the government's theory was that PFC Manning had violated the
Army's acceptable use policy (AUP) by accessing the cables for
an unauthorized purpose. (App. Ex. 91 at 2).

The defense filed a pre-trial motion to dismiss pursuant to
Rule for Court-Martial (R.C.M.) 907(b)(1)(B) challenging the

government's theory. (App. Ex. 90). The crux of the motion was
that the government could not satisfy the "exceeds authorized
access" element merely by presenting evidence PFC Manning had
accessed the information for an improper purpose or in violation

26

of the Army's AUP. The military judge agreed with the defense's

interpretation of the statute. (App. Ex. 139 at 9)("Applying the
Rule of Lenity, the Court shall adopt the narrow meaning of
'exceeds authorized access' under the CFAA and instruct the fact
finder that the term 'exceeds authorized access' is limited to
violations of restrictions on access to information, and not
restrictions on its 'use'".). (App. Ex. 139 at 9)(emphasis in
original).

The ruling correctly reflected the intent of the CFAA. "The
statute is not meant to punish those who use a computer for an
improper purpose or in violation of the governing terms of use,
but rather the statute is designed to criminalize electronic
trespassers and computer hackers." (App. Ex. 139 at 7)(emphasis
added).11 Although the military judge agreed with the defense's
interpretation of the statute, and adopted a narrow definition
of "exceeds authorized access" as the rule of lenity requires,
she declined to dismiss the charge because the government
represented that it would present evidence other than the AUP at
trial. (App. Ex. 139 at 8-9).

The government then came up with new evidence and a new
theory, consisting of the following: rather than alleging PFC

11 The government conceded in pretrial briefing that 18 U.S.C. §
1030(a)(1) is aimed at circumventing computer hackers. (App. Ex.
188 at 5).

27

Manning accessed the cables for an improper purpose, the
government would instead seek to prove she "bypassed the
ordinary method of accessing information by adding unauthorized
software [i.e., W-get] to [her] SIPRNET computer and using that
software to rapidly harvest or data-mine the information. W-get
was not available on the computers used by the accused or
authorized as a tool to download the information." (App. Ex. 188
at 5). The government argued the Army's policy of prohibiting
the use of unauthorized software on classified computers was an
access restriction within the meaning of the CFAA. (App. Ex. 188
at 3)("The authority to access information cannot be
meaningfully separated from the manner in which one does so. An
individual's 'authority' to do practically everything is limited
by specific circumstances or by the scope of that authority, and
this case is no different.").

The defense again filed a motion to dismiss because even
under the government's new theory, PFC Manning's security
clearance allowed her to access all the cables. (App. Ex. 170 at
5). Whether she used W-get while accessing the cables was also
irrelevant for purposes of the statute. This time, however, the
military judge sided with the government.

The ruling relied on a 1996 Senate Judiciary Committee
Report describing various amendments to the CFAA. See S. Rep.

No. 104-357, at 6. The amendments were made to "bring the

28

protection for classified information maintained on computers in

line with [federal] espionage laws." Id. at 5. Importantly, the
following language in the Report appears to have swayed the
military judge's interpretation of the statute in favor of the
government:

[a]lthough there is considerable overlap
between 18 U.S.C. § 793(e) and section

1030(a) (1), as amended by the NII Protection
Act, the two statutes would not reach exactly
the same conduct. Section 1030(a) (1) would
target those persons who deliberately break
into a computer to obtain properly classified
Government secrets then try to peddle those
secrets to others, including foreign

governments. In other words, unlike existing
espionage laws prohibiting the theft and
peddling of Government secrets to foreign
agents, section 1030(a)(1) would require proof
that the individual knowingly used a computer
without authority, or in excess of authority,
for the purpose of obtaining classified
information. In this sense then, it is the use
of the computer which is being proscribed, not
the unauthorized possession of, access to, or
control over the classified information
itself.

Id. at 6-7.

From this part of the legislative history, the military

judge broadly and expansively interpreted the phrase "exceeds

authorized access" to include manner of access restrictions

reflected in Army policies.

Restrictions on access to classified
information are not limited to code based or
technical restrictions on access. Restrictions
on access to classified information can arise
from a variety of sources, to include

29

regulations, user agreements, and command
policies. Restrictions on access can include
manner of access. The two are not mutually
exclusive.

(App. Ex. 218 at 2). The ruling permitted the government to
proceed to trial on the theory that PFC Manning's use of W-get
was itself sufficient to establish that she accessed classified
information in "excess of authorized access."

After the presentation of evidence the defense filed a

motion for a finding of not guilty pursuant to R.C.M. 917(d).

(App. Ex. 595). The defense again challenged whether 18 U.S.C. §

1030(a)(1) criminalized PFC Manning's use of W-get. (App. Ex.

595 at 2)("PFC Manning's purported use of this allegedly

unauthorized program to download the information specified in

Specification 13 of Charge II does not change the only fact that

matters in the 'exceeded authorized access' inquiry: PFC Manning

was authorized to access each and every piece of information

[she] accessed."). The military judge denied the motion, and in

doing so, adopted an even broader reading of the statute:

Although the definition for "exceeds
authorized access" is the same for all sections
of 18 U.S.C. § 1030, access restrictions on

classified information can be more stringent
than for other information and can include
manner of access restrictions designed to
ensure the security and protection of the
classified information and to prevent the
classified information from exposure to
viruses, trojan horses or other malware.

(App. Ex. 609 at 6).

30

Finally, the military judge found sufficient evidence had

been introduced at trial to support the allegations. "Evidence
that the accused used unauthorized software, W-get, to access
and download the classified records charged in Specification 13
of Charge II provides some evidence . . . that the accused

'exceeded authorized access' on a SIPR computer." (App. Ex. 609
at 7).12

The issue on appeal is straightforward—did the military
judge err by broadly interpreting "exceeds authorized access" to
include manner of access restrictions designed to keep
classified information free from exposure to viruses, trojan
horses and other malware? As shown below, the government cannot
point to any unambiguous and definitive legal authority to
support the military judge's broad reading of the statute—not
the plain language of the statute, the statute's legislative
history, or even case law in other jurisdictions. Therefore, the

12 The military judge made the following factual finding.

The government has presented testimony by
Special Agent (SA) David Shaver, Mr. Jason
Millman, CPT Thomas Cherepko, and Mr. Mark
Kirtz that W-get is not authorized software for
a DCGS-A computer and, even if it was, W-get,
as executable software, was required to be
installed by Mr. Millman on the DCGS-A
computers.

(App. Ex. 609 at 6).

31

rule of lenity requires dismissal of the charge and
specification.

Standard of Review

This court reviews questions of statutory interpretation de
novo. See United States v. Atchak, 75 M.J. 193 (C.A.A.F. 2016);
United States v. Vargas, 74 M.J. 1, 5 (C.A.A.F. 2014); Williams,
2016 CCA LEXIS 195 at *5.

Law and Argument

18 U.S.C. § 1030(a)(1) makes it unlawful to knowingly
access a computer "without authorization or to exceed authorized
access" to obtain classified or other restricted information
with reason to believe such information could be used to the
injury of the United States. The statute defines "exceeds
authorized access" as "access[ing] 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
alter." 10 U.S.C. § 1030(e)(6)(emphasis added). Congress enacted
the CFAA "to address the growing problem of computer hacking,
recognizing that, 'in intentionally trespassing into someone
else's computer files, the offender obtains at the very least
information as to how to break into that computer system.'"
United States v. Nosal (Nosal III), 676 F.3d 854, 858 (9th Cir.
2012)(quoting S. Rep. No. 99 - 432, at 9 (1986), 1986
U.S.C.C.A.N. 2479, 2487 (Conf. Rep.)).

32

1. The meaning of "exceeds authorized access" is ambiguous.

"Unless a statute is ambiguous, the plain language of a
statute will control unless it leads to absurd results." United
States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013)(citation and
internal quotations omitted). If a statute is ambiguous, the
statute's purpose and legislative history must be considered.

See United States v. Valigura, 54 M.J. 187, 200 (C.A.A.F. 2000);
United States v. Starr, 51 M.J. 528, 432 (A.F. Ct. Crim. App.

1999). If after reviewing the legislative history and purpose of
the statute ambiguity persist, "it must be resolved in favor of
the accused." Williams, 2016 CCA LEXIS 195 at *10.

The phrase "exceeds authorized access" is unquestionably

ambiguous. As the military judge acknowledged, the phrase has

been subject "to differing interpretations among the [United

States] Circuit Courts of Appeals thereby indicating the

statutory language is not definitive and clear." (App. Ex. 139

at 5). Earlier this year the Second Circuit found the statute

ambiguous for the exact same reason.

Over the past fourteen years, six other
circuits have wrestled with the question before
us. Most recently, the Ninth Circuit sitting
en banc in [Nosal III] and the Fourth Circuit
in WEC Carolina Energy Solutions LLC v. Miller,

687 F.3d 199 (4th Cir.2012), adopted Valle’s
construction. Before that, the First, Fifth,

Seventh, and Eleventh Circuits adopted the
prosecution’s interpretation. See United
States v. John, 597 F.3d 263 (5th Cir.2010);

United States v. Rodriguez, 628 F.3d 1258 (11th

33

v.

Cir.2010); Int'l Airport Ctrs., L.L.C.

Citrin, 440 F.3d 418 (7th Cir.2006); EF

Cultural Travel BV v. Explorica, Inc., 274 F.3d
577 (1st Cir.2001) . If this sharp division
means anything, it is that the statute is
readily susceptible to different

interpretations.

United States v. Valle, 807 F.3d 508, 524 (2d Cir.

2015)(emphasis added).

Two prevailing interpretations of "exceeds authorized
access" have arisen from this case law. One interpretation is
considered narrow, and the other broad. The narrow
interpretation is that an individual "exceeds authorized access"
only when he or she violates an access restriction. See, e.g.,
Valle, 807 F.3d at 523 (defendant did not "exceed authorized
access" because he was "authorized to obtain database
information."); WEC Carolina Energy Solutions LLC, 687 F.3d at
206 (an individual "exceeds authorized access" only when he or
she "accesses a computer without permission or obtains or alters
information on a computer beyond that which he is authorized to
access."); Nosal III, 676 F.3d at 863-64 (holding that "exceeds
authorized access" is "limited to restrictions on access to
information, and not restrictions on its use.")(emphasis in
original).

Access restrictions tend to arise when, for example, an
employee has authority to view database "x" on a computer, but

34

not database "y".13 If the employee views database "y", he or she

has "exceeded authorized access" within the meaning of the CFAA.
This is why the "exceeds authorized access" language is
generally understood to apply to "inside hackers" who use their
authorized access to a computer to "hack" into files or
databases on that computer to which they have no right of
access. (App. Ex. 139 at 7)(citing Nosal III, 676 F.3d at 858).

Under the broad view, the employee in the above example
could be found to have "exceeded authorized access" with respect
to the information in database "x" (which he or she was
authorized to access) if the information is used for an improper
purpose or in violation of a computer use agreement, policy or
regulation. See, e.g., John, 597 F.3d at 272 ("Access to a
computer and data that can be obtained from that access may be
exceeded if the purposes for which access has been given are
exceeded."); Rodriguez, 628 F.3d at 1263 ("Rodriguez exceeded
his authorized access and violated the Act when he obtained
personal information for a nonbusiness reason."); Int'l Airport
Ctrs. LLC, 440 F.3d at 420 (defendant "exceeded authorized
access" by misusing former employer's confidential data); EF
Cultural Travel BV, 274 F.3d at 582-83 (defendant "exceeded 13

13 It is not uncommon for a computer user to have restricted
rights, meaning that he or she can access certain databases or
files on a computer, but not others.

35

authorized access" by using a software program to rapidly glean

prices in violation of confidentiality agreement).

Going back to the above example, under the broad view, an
employee could "exceed authorized access" by copying or
downloading the information in database "x", even though he or
she had authority to access the information, if copying or
downloading violates company policy. These sorts of policies
restrict employees' use of the information, not their access.

This discussion proves the obvious—the statute is
susceptible to at least two different interpretations, which
under the law makes it ambiguous. In such cases the court must
examine the legislative purpose and history of the statute to
ascertain its meaning. Starr, 51 M.J. at 532.

2. Neither the statutory history nor the case law unambiguously
supports the military judge's interpretation of the CFAA.

The military judge issued three different rulings with
respect to the meaning of the phrase "exceeds authorized
access." (App. Exs. 139, 218, 609). From these rulings it is
clear the military judge misunderstood the purpose of the
statute.

In the first ruling, the military judge correctly found the
phrase "exceeds authorized access" ambiguous, applied the rule
of lenity, and adopted the narrow interpretation, which is that
"exceeds authorized access" is limited to access restrictions,

36

not restrictions on use. (App. Ex. 139 at 9). Although the
military judge did not dismiss the charge and specification, her
interpretation of the statute was correct.

In the second ruling the military judge considered the

government's new theory, which is that PFC Manning "exceeded

authorized access", not by accessing the cables for an improper

purpose or in violation of the AUP, but by using W-get.

Restrictions on access to classified
information are not limited to code based or
technical restrictions on access. Restrictions
on access to classified information can arise
from a variety of sources, to include
regulations, user agreements, and command
policies. Restrictions on access can include
manner of access. The two are not mutually
exclusive.

(App. Ex. 218 at 2). After the presentation of evidence at trial

the military judge ruled on the defense motion for a finding of

not guilty. (App. Ex. 609). It was here, in the third and final

ruling, that the military judge interpreted the statute more

broadly than any court ever has:

Although the definition for "exceeds
authorized access" is the same for all sections
of 18 U.S.C. § 1030, access restrictions on
classified information can be more stringent
than for other information and can include
manner of access restrictions designed to
ensure the security and protection of the
classified information and to prevent the
classified information from exposure to
viruses, trojan horses or other malware.

37

(App. Ex. 609 at 6). Taken together, the military judge adopted

one of the broadest interpretations of "exceeds authorized
access" imaginable, an interpretation neither the legislative
history nor any case law supports.

A. The legislative history does not support the military
judge's interpretation of the statute.

The military judge's ruling suffers from two glaring
mistakes. The first mistake stems from the military judge's
misunderstanding of the legislative history surrounding certain
amendments to the CFAA in 1996. These amendments were made in
1996 to tighten loopholes with respect to "hacking" into
government computers and to bring the CFAA's scienter element
into conformity with the Espionage Act, 18 U.S.C. § 793(e). S.
Rep. 104-357. It is the latter concern that drew the military
judge's attention.

Three comments in the Senate Report are relevant to this
appeal. First, Congress aspired to make the scienter element for
18 U.S.C. § 1030(a)(1) and 18 U.S.C. § 793(e) match. S. Rep.
104-357, at 6. ("Therefore, the NII Protection Act would amend §
1030(a)(1) to track the scienter requirement of 18 U.S.C. §
793(e), which also provides a maximum penalty of 10 years
imprisonment for obtaining from any source certain items
relating to the national defense."). Second, the amendments were
intended to ensure the CFAA applied to both outside and inside

38

hackers. Id. ("The amendment specifically covers the conduct of

a person who deliberately breaks into a computer without
authority, or an insider who exceeds authorized access, and
thereby obtains classified information and then communicates the
information to another person, or retains it without delivering
it to the proper authorities."). Id.

Third and finally, Congress wished to draw a distinction
between the Espionage Act and the CFAA, recognizing that there
is "considerable overlap" between the two. Id. at 6. As the
Report explains, "it is the use of the computer which is being
proscribed [under 18 U.S.C. § 1030 (a)(1)], not the unauthorized
possession of, access to, or control over the classified
information itself." Id. at 6-7 (emphasis added).

The latter comment confused the military judge and led her
to erroneously interpret the statute. The military judge
apparently took this comment to mean that, "access restrictions
for classified information can be more stringent than for other
information and can include manner of access restrictions
designed to ensure the security and protection of the classified
information and to protect the classified information from
exposure to viruses, Trojan horses or other malware." (App. Ex.
609 at 6).

Nowhere, however, does the Senate Judiciary Committee
Report actually say this, nor is the military judge's

39

interpretation of the comment evident from the context. A more

logical reading of the comment regarding the overlap between 18
U.S.C. § 793 and 18 U.S.C. § 1030(a)(1) is that Congress was
concerned about Double Jeopardy, or what in the military justice
system is called multiplicity. See United States v. Teters, 37
M.J. 370, 373 (C.M.A. 1993)("[A] constitutional violation under
the Double Jeopardy Clause of the Constitution now occurs only
if a court, contrary to the intent of Congress, imposes multiple
convictions and punishments under different statutes for the
same act or course of conduct.")(emphasis added); see also
United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)("The

prohibition against multiplicity is necessary to ensure
compliance with the constitutional and statutory restrictions
against Double Jeopardy."). When the Senate Report refers to the
"use of the computer," it is making an important distinction for
Double Jeopardy/multiplicity purposes—18 U.S.C. § 1030(a)(1)
requires proof that a computer was used during the commission of
the offense, whereas 18 U.S.C. § 793 does not.

Even if the military judge's interpretation of the
legislative history is plausible, by no means is it clear or
certain. United States v. Santos, 553 U.S. 507, 515, 128 S. Ct.
2020, 2026, 170 L. Ed. 2d 912 (2008)("When interpreting a
criminal statute, we do not play the part of a mindreader.");
Williams, 2016 CCA LEXIS 195 at *13 (requiring unambiguous

40

legislative intent to avoid an interpretation that favors the
accused). Congress has never, anywhere in the CFAA's legislative
history, stated or even implied that access restrictions for
classified information are more stringent than for non-
classified information. Nor has Congress ever said that one of
the purposes of the CFAA is to safeguard classified information
from viruses, trojan horses or other malware. Rather, as the
military judge correctly noted in her first ruling on this
issue, "[t]he CFAA is not meant to punish those who use a
computer for an improper purpose or in violation of the
governing terms of use, but rather the statute is designed to
criminalize electronic trespassers and computer hackers." (App.
Ex. 139 at 9)(emphasis added). The legislative history,
therefore, does not support the military judge's later
interpretation of the statute.

B. The case law does not support the military judge's
interpretation of the phrase "exceeds authorized access."

The military judge also erred by misreading the case law
surrounding the meaning of the CFAA. As discussed above the case
law generally falls into two categories: a majority of cases
define "exceeds authorized access" narrowly to include only
access restrictions, while other cases support a broader
interpretation, including restrictions on use or purpose-based
restrictions. See Giles Construction, LLC v. Tooele Inventory

41

Sol., Inc., 2015 U.S. Dist. LEXIS 72722, at *6 (D. Utah Jun. 16,

2015)(unreported decision)("It appears that a majority of courts
weighing in on the issue have adopted this narrow construction.
And the trend among courts appears to be in this direction over
time."). The military judge's ruling falls into the latter
category of cases-she interpreted the statute broadly to include
manner of access restrictions, which are really use
restrictions. Only two appellate courts have considered the
"manner of access" argument; both rejected it.

In Nosal III, for example, the Ninth Circuit sitting en
banc expressly rejected the military judge's finding here, which
is that the definition of "exceeds authorized access" includes
manner of access restrictions. 676 F.3d at 857. Under this
rejected interpretation, "an employee may be authorized to
access customer lists in order to do his job but not to send
them to a competitor." Id. This is strikingly similar to the
government's theory, which is that PFC Manning may have had
unlimited access to the cables but not to search them or
download them with W-get.

The Ninth Circuit declined the government's interpretation
of the statute for two reasons. First, the plain language of the
statute did not support it. Id. (refusing to define the word
"so" in the statutory definition of exceeds authorized access,

18 U.S.C. § 1030(e)(6), to mean "in a manner" because if

42

"Congress meant to expand the scope of criminal liability to

everyone who uses a computer in violation of computer use

restrictions—which may well include everyone who uses a

computer—we would expect it to use language better suited to

that purpose."). Second, the legislative history contradicted

the government's reading of the statute:

[a]lthough the legislative history of the CFAA
discusses this anti-hacking purpose, and says
nothing about exceeding authorized use of
information, the government claims that the
legislative history supports its

interpretation. It points to an earlier version
of the statute, which defined "exceeds
authorized access" as "having accessed a
computer with authorization, uses the
opportunity such access provides for purposes
to which such authorization does not extend."

Pub. L. No. 99-474, § 2(c), 100 Stat. 1213

(1986). But that language was removed and
replaced by the current phrase and definition.

And Senators Mathias and Leahy — members of the
Senate Judiciary Committee—explained that the
purpose of replacing the original broader
language was to "remove[] from the sweep of the
statute one of the murkier grounds of

liability, under which a[n] . . . employee's

access to computerized data might be legitimate
in some circumstances, but criminal in other
(not clearly distinguishable) circumstances."

S. Rep. No. 99-432, at 21, 1986 U.S.C.C.A.N.

2479 at 2494. Were there any need to rely on
legislative history, it would seem to support
Nosal's position rather than the government's.

Id. at 858, n.5.

The Fourth Circuit also rejected the military judge's
reading of the statute in WEC Carolina Energy Solutions LLC, 687

F.3d at 206. There the court considered a civil claim brought by

43

an employer against an employee who had downloaded and copied
information from a computer in violation of company policy. In
rejecting plaintiff's argument the court found, "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." Id.

Lastly, no court has ever considered, much less found, that
the CFAA imposes more "stringent" requirements for classified
information than for non-classified information. The phrase
"exceeds authorized access" is used in four different parts of
the statute. See 18 U.S.C. § 1030 (a)(1), (a)(2), (a)(4), and

(a)(7)(B). The phrase means the exact same thing for every part
of the statute, regardless of the classification level of the
information. See 18 U.S.C. § 1030(e)(6)(reflecting that Congress
did not subscribe separate meaning for classified versus non-
classified information). "A standard principle of statutory
construction provides that identical words and phrases within
the same statute should normally be given the same meaning.
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232,
127 S. Ct. 2411 (2007); see also United States v. Simmermacher,

74 M.J. 196, 201 n.8 (C.A.A.F. 2015)("There is no rule of

statutory construction that allows for the court to append
additional language as it sees fit."). The case law, therefore,

44

does not support the military judge's interpretation of the
statute either.

3. The rule of lenity requires dismissal of the charge and
specification.

No legal authority—not the plain language of the statute,
the legislative history, or federal case law—unambiguously
supports the military judge's expansive interpretation of 18
U.S.C. § 1030(a)(1). Under these circumstances the rule of
lenity requires dismissal of the charge and specification for
insufficiency of the evidence. Williams, 2016 CCA LEXIS 195 at
*13. The government's case rests entirely on the notion that PFC
Manning's use of W-get "exceeded authorized access" within the
meaning of the CFAA. As established above, however, PFC
Manning's use of W-get cannot itself establish a violation of
the statute.

Conclusion

The CFAA makes it a crime to hack into government computer
systems to obtain classified information. Congress did not enact
the CFAA to safeguard classified information from misuse or
malware. Every court to recently address the issue has declined
to interpret the statute as expansively as the military judge.
Therefore, Specification 13 of Charge II should be set aside and
dismissed.

45

III.

WHETHER THE EVIDENCE WAS LEGALLY AND FACTUALLY
SUFFICIENT TO SUSTAIN PFC MANNING'S
CONVICTIONS FOR VIOLATIONS OF 18 U.S.C. § 641
(SPECIFICATIONS 4, 6, 8, 12, AND 16 OF CHARGE
II)?

Statement of Facts

The government charged PFC Manning under clause 3 of
Article 134, UCMJ, with five specifications of stealing,
purloining, or knowingly converting a record or thing of value
belonging to the United States of a value in excess of $1,000,
in violation of 18 U.S.C. § 641. (Specifications 4, 6, 8, 12,
and 16 of Charge II). (Charge Sheet). The elements of this
offense are:

(1) The accused did steal, purloin, or
knowingly convert records to her own use
or someone else's use;

(2) The records belonged to the United States
or a department or agency, thereof;

(3) The accused acted knowingly and willfully
and with the intent to deprive the
government of the use and benefit of the
records;

(4) The records were of a value greater than
$1,000;

(5) 18 U.S.C. § 641 was in existence on the
dates alleged in the specification; and

(6) Under the circumstances, the conduct of
the accused was to the prejudice of
good order and discipline in the armed
forces or was of a nature to bring

46

discredit upon the armed forces.

(App. Ex. 410a).

As charged, the Section 641 specifications alleged PFC
Manning stole, purloined, or knowingly converted the following:

• Specification 4: the Combined Information Data Network-Iraq
(CIDNE-I) database containing more than 380,000 records;

• Specification 6: the Combined Information Data Network-
Afghanistan (CIDNE-A) database containing more than 90,000
records;

• Specification 8: a United States Southern Command (SOUTCOM)
database containing more than 700 records;

• Specification 12: the Department of State (DoS) Net-Centric
Diplomacy (NCD) database containing more than 250,000
records; and

• Specification 16: the United States Forces-Iraq (USF-I)
Microsoft Outlook/SharePoint Exchange Server global address
list (GAL). (Charge Sheet).

At the close of the government's presentation of evidence
on the merits, the defense moved for findings of not guilty
under R.C.M. 917 as to each of the five Section 641
specifications. (App. Exs. 593, 596). Defense counsel presented
a range of arguments in support of these motions. (App. Ex. 593
(R.C.M 917 motion re: Specifications 4, 6, 8, 12); App. Ex. 596

47

(R.C.M. 917 motion re: Specification 16); App. Ex. 614 (motion

for reconsideration); R. at 10462-85, 10502-19, 10531-38 (oral
argument re: R.C.M. 917 motions)). The military judge denied the
defense R.C.M. 917 motions, as well as the defense motion for
reconsideration and the defense motion for a mistrial. (App.

Exs. 613, 614, 623; R. at 11237).

The military judge found PFC Manning guilty of the five
Section 641 specifications. (R. at 11238-41). In special
findings, the military judge explained she found PFC Manning
guilty of stealing, purloining, and converting "a portion of"
the databases at issue in Specifications 4 and 6 (CIDNE-I and
CIDNE-A) and the entire databases at issue in Specifications 8
and 12 (SOUTHCOM and DoS NCD). (App. Ex. 625 at 4-5). She found
PFC Manning guilty of stealing, purloining, and attempting to
convert14 "a portion of" the USF-I GAL at issue in Specification

16. (App. Ex. 625 at 4-5).

Additional facts necessary to dispose of the assigned error
are discussed below.

14 The military judge found PFC Manning did not complete her
attempted conversion of a portion of the USF-I GAL because she
was apprehended prior to actually sending it to WikiLeaks. (App.
Ex. 625 at 5).

48

Standard of Review

Pursuant to Article 66(c), UCMJ, this court must "conduct a
de novo review of [the] legal and factual sufficiency of the
case." United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The standard of review for legal sufficiency is whether,
considering all the evidence in the light most favorable to the
government, a reasonable fact-finder could have found all the
essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Turner, 25 M.J. 324 (C.M.A. 1987).

The test for factual sufficiency is "whether, after
weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses,

[the members of the court] are themselves convinced of the
accused’s guilt beyond a reasonable doubt." United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). An Article 66, UCMJ,
review involves a "fresh, impartial look at the evidence" and
this court must make "its own independent determination as to
whether the evidence constitutes proof of each required element
beyond a reasonable doubt." Washington, 57 M.J. at 399. The
evidence must leave no fair and reasonable hypothesis other than
PFC Manning's guilt. United States v. Billings, 58 M.J. 861, 869
(Army Ct. Crim. App. 2003)(citations omitted).

49

III.A.

WHETHER THE EVIDENCE WAS LEGALLY AND FACTUALLY
SUFFICIENT TO SUSTAIN PFC MANNING'S
CONVICTIONS FOR STEALING, PURLOINING, OR
CONVERTING "DATABASES" (SPECIFICATIONS 4, 6,
8, AND 12 OF CHARGE II) WHERE THERE WAS NO
EVIDENCE THE ACTUAL DATABASES WERE STOLEN,
PURLOINED, OR CONVERTED?

Additional Statement of Facts

In Specifications 4, 6, 8, and 12 of Charge II, the
government charged PFC Manning with stealing or converting
"databases." (Charge Sheet). For example, in Specification 12 of
Charge II, the government alleged PFC Manning stole or
converted:

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 . .

(Charge Sheet)(emphasis added). Specifications 4, 6, and 8 are
identical in structure. (Charge Sheet).

At trial, the government presented evidence PFC Manning
accessed these databases and produced digital copies of certain
records within them. (R. at 7474-9171). She placed the digital
copies of these records on her private portable digital media
and ultimately transmitted these digital copies to WikiLeaks.

(R. at 7474-9171).

50

There was no evidence PFC Manning stole, purloined,15 or

converted the actual databases themselves. The evidence
demonstrated the databases never moved from their digital
locations on the Secret Internet Protocol Router (SIPR) network.
(R. at 7741, 7862, 7933; Pros. Exs. 115, 116). Government
personnel maintained full access to the databases throughout the
period of the alleged offenses. (R. at 7741, 7862, 7933; Pros.
Exs. 115, 116). Similarly, there was no evidence PFC Manning
stole or converted any original records within the databases, as
the originals also remained within the databases and available
to government personnel at all times relevant to the
specifications. (R. at 7741, 7862, 7933; Pros. Exs. 115, 116).

The digital copies of records obtained by PFC Manning
contained various types of information, depending on the type of
record copied. The records copied from the CIDNE-A and CIDNE-I
databases were Significant Activity reports (SIGACTS). (Pros.

Ex. 115, R. at 8309). SIGACTS contain information on completed
military operations. (Pros. Ex. 115; R. at 8310). The CIDNE
databases also contain approximately 129 other types of reports,
none of which PFC Manning copied or transmitted to WikiLeaks.
(Pros. Ex. 115; R. at 8311, 10809-10). 15

15 To "purloin" is simply to steal with the element of stealth.
(App. Ex. 625 at 2). Thus, in the interest of brevity, future
references to "stealing, purloining, or converting" will read
"stealing or converting.”

51

The records copied from the DoS NCD database were

diplomatic cables. (R. at 8347). Diplomatic cables contain
information on diplomatic relations and analysis of events
occurring in a particular country. (R. at 9100, 9261). The

records copied from the SOUTHCOM database were detainee
assessment briefs (DABs). (R. at 7979-82, 8727). DABs contain
information on detainees held at Guantanamo Bay. (R. at 8727).

In support of the R.C.M. 917 motion, defense counsel argued
the government failed to present any evidence PFC Manning stole
or converted the actual databases, or original records within
the databases, at issue in Specifications 4, 6, 8 and 12 of

Charge II (CIDNE-I, CIDNE-A, SOUTHCOM, and DoS NCD databases).

(App. Ex. 593 at 1-9). Defense counsel argued the government's
evidence instead focused solely on digital copies of records
within the databases, and information within those copies,
distinct property which PFC Manning was not charged with
stealing or converting. (App. Ex. 593 at 5-8).

In her ruling on the R.C.M. 917 motion, the military judge
found Specifications 4, 6, 8, and 12 of Charge II charged PFC
Manning with stealing or converting "a specified database and a
number of records contained within that database." (App. Ex. 613
at 6; R. at 10906). She also found "information is necessarily
included within the definition of both record and database."

(App. Ex. 613 at 6; R. at 10906). Thus, according to the

52

military judge, there was no material variance between the
pleadings and the proof and the specifications provided PFC
Manning notice she "was accused of stealing the information in
the described records and databases described in the
specifications . . . (App. Ex. 613 at 6; R. at 10906).

The military judge further ruled that, in the case of
electronic data, there is no distinction between digital copies
of records and original records, reasoning "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." (App. Ex. 613 at 7). She noted PFC Manning was not
charged with stealing copies, but instead with stealing "the
databases, electronic records, and information therein." (App.

Ex. 613 at 7).

Law and Argument

"Few constitutional principles are more firmly established
than a defendant's right to be heard on the specific charges of
which he is accused." Dunn v. United States, 442 U.S. 100, 107
(1979)(citations omitted). The Sixth Amendment to the
Constitution provides an accused shall "be informed of the
nature and cause of the accusation." U.S. Const. amend. VI. The
Due Process Clause of the Fifth Amendment forbids conviction of
an offense with which an accused has not been charged. U.S. Const.

53

amend. V; United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F.

2011). "Both amendments ensure the right of an accused to
receive fair notice of what he is being charged with." Girouard,
70 M.J. at 10 (citing Apprendi v. New Jersey, 530 U.S. 466, 476
(2000); Cole v. Arkansas, 333 U.S. 196, 200 (1948)).

The first part of the Section 641 specifications ("a record
or thing of value of the United States") mirrors the language of
18 U.S.C. § 641 and puts PFC Manning on notice of the provision
alleged to be violated. The second part of the specifications
("to wit: the . . . database") notifies PFC Manning of the

actual property alleged to have been stolen or converted—a
"database." The third part of the specifications ("containing
more than 250,000 records") is merely descriptive, providing
notice that the database alleged to be stolen or converted
contained a certain number of records. However, that the
databases contained some number of records does not alter the
fact PFC Manning was alleged to have stolen or converted the
"databases," not "records," "information," or "copies."

The government's charging decision and the evidence
presented to support those charges overlooked a crucial detail—
the databases themselves were not actually stolen or converted.

Thus, the evidence is legally and factually insufficient to
sustain PFC Manning's convictions for stealing or converting
databases. To save these specifications after the presentation

54

of insufficient evidence, the military judge erroneously ruled

"information" and "records" are necessarily included in the
definition of "database," and that there is no distinction
between original electronic records and digital copies of those
records. (App. Ex. 613).

1. A "database" is a form of property distinct from records,
copies of records, and the information therein.

A database is a substantially different form of property
than the records and information contained within the database,
or digital copies of those records. Contrary to the military
judge's reasoning, the plain meaning of the term "database"
dictates this conclusion. Also, Section 641 itself recognizes a
distinction between "records" and intangible "things of value"
such as information. Federal prosecutions under Section 641
recognize that distinction, invariably alleging the theft of
information or copies when information or copies are stolen or
converted. Thus, PFC Manning was not on notice she had to defend
against a charge of stealing records, information, or copies of
records, and the military judge's ruling was erroneous.

A. The plain meaning of the term "database" confirms it is
distinct from "information," "records," or "copies."

Merriam-Webster defines "database" as a "collection of data
organized especially for rapid search and retrieval (as by a
computer)." Merriam-Webster, http://www.merriam-
webster.com/dictionary/database (last accessed 13 Nov. 2015).

55

Similarly, Black's Law Dictionary defines "database" as a
"compilation of information arranged in a systematic way and
offering a means of finding specific elements it contains, often
today by electronic means." Black's Law Dictionary 452 (9th ed.
2009).

Unlike a database, "information" is intangible. (App. Ex.
625 at 3); United States v. Girard, 601 F.2d 69, 71 (2nd Cir.
1979); United States v. Tobias, 836 F.2d 449, 451 (9th Cir.
1988). It is "the communication or reception of knowledge or
intelligence." Merriam-Webster, http://www.merriam-
webster.com/dictionary/information (last accessed 20 Nov. 2015).

"Records" and "copies" are tangible items. A "record" is
"something that recalls or relates past events." Merriam-
Webster, http://www.merriam-webster.com/dictionary/record (last
accessed 15 November 2015). A "copy" is "an imitation,
transcript, or reproduction of an original work (as a letter, a
painting, a table, or a dress)." Merriam-Webster,
http://www.merriam-webster.com/dictionary/copy (last accessed 15
Nov. 2015).

It is apparent from these definitions that a database is
distinct from the records it contains, intangible information
within those records, and any copies of those records. A
database, as a "collection of data" or a "compilation of
information," is simply the medium by which records and

56

information are stored, arranged, and retrieved. In contrast, a

record and information within a record might be stored in a
database but are not synonymous with the database itself.
"Copies" of records are altogether separate items of property.

The military judge's special findings illustrate this
point. For each Section 641 offense, she repeatedly referenced a
database as a medium containing records, and a record as a
medium containing information. She found "PFC Manning did steal
and purloin the records, and information therein, by using
[government computers] to extract the records, and information
therein, from the relevant database . . . ." (App. Ex. 625 at

4)(emphasis added). In so doing, she effectively recognized
records and information as forms of property distinct from the
database containing those records and information.

The government's evidence also demonstrates that a database
is distinct from the records and information it contains.
Throughout trial, government witnesses differentiated between
the databases and the information within those databases. For
example, Mr. Bora's stipulation of expected testimony states,
"CIDNE is a reporting and querying system" that "links
operations information with intelligence information." (Pros.

Ex. 115; R. at 8309). Similarly, Mr. Hoeffel's stipulation
states, "CIDNE is a centralized database that stores information
about events, people, organization, and facilities, and makes

57

that information available to users . .

(Pros. Ex. 116; R.

at 8318)(emphasis added). Rear Admiral Kevin Donegan described
the CIDNE database "as a big hard drive . . . where we store . .

. a lot of our information . . . ." (R. at 12390).

Thus, according to the government's own witnesses, a
database is a system that simply catalogues information and is
not synonymous with the information itself. Simply put, a
database is a thing, information is a thing, but neither is the
same thing nor necessarily included within the other. One can
possess an empty database, or "hard drive," devoid of records
and information. One can also possess records and information
outside of a database.

An analogy to an offense involving tangible property as
opposed to digital media solidifies this point. Consider the
similarity of a database and filing cabinet. Both are mediums
for storing records and information. Private First Class Manning
accessed a database and made digital copies of records
containing information in the same manner one in the pre-digital
age might have opened a government filing cabinet and
photocopied the records within.

But stealing or converting photocopies of documents within
a filing cabinet is not the same as stealing the filing cabinet
itself. The filing cabinet has not been stolen or converted—it
remained in the same place and was used by the government in the

58

same manner both before and after the alleged theft or
conversion. Neither have the actual records within the cabinet
been stolen or converted in this scenario. They too remain
undisturbed. Rather, the copies of records are the property at
issue.

The identification of the precise property at issue is
important. A determination of whether the photocopies, actual
records, or the filing cabinet itself was stolen or converted,
and whether their value exceeds the statutory minimum, requires
entirely different forms of proof. The government would not be
permitted to charge the theft of a filing cabinet "containing" a
certain number of records, then after failing to prove the
cabinet was stolen argue the offense actually alleged the theft
of photocopies containing information. But the military judge
effectively allowed the government to do so here.

B. Federal case law establishes the theft of "information,"
"records," and "copies" are separate offenses.

The government chose to incorporate federal provisions into
the charge sheet. The defense appropriately relied on federal
case law to defend against allegations of stealing databases,
the charged property—not records, information, or copies. (App.
Ex. 614 at 4).

Cases involving federal prosecutions under Section 641
demonstrate theft of "information" and theft of "records" are

59

different theories of larceny. The Ninth Circuit holds
information does not even fall within the ambit of Section 641.
Tobias, 836 F.2d at 451. The Fourth Circuit has expressed
similar reservation over Section 641's applicability to
information. United States v. Truong Dinh Hung, 629 F.2d 908,
924-28 (4th Cir. 1980)(Winter, J., concurring). Under this view,
"information" is never a "record" within the meaning of Section
641.

Even circuits holding Section 641 does apply to information
have made clear that information falls within the "thing of
value" prong of Section 641, not the "records" prong. See United
States v. DiGilio, 538 F.2d 972, 978 n.10 (3rd Cir. 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."); see also Girard, 601 F.2d at 71 (although information
is intangible, it is "a thing of value"). Since information is
not a "record" under Section 641, but is instead an intangible
"thing of value," under this view information cannot be

60

necessarily included within the definition of "record" as the
military judge ruled.16

Federal case law also illustrates the appropriate charging
method for the theft of information, records, or copies of
records. For example, in United States v. Jeter, the government
charged Jeter with the theft and conversion of "carbon paper and
the information contained therein" that related to a secret
grand jury proceeding. 775 F.2d 670, 680-81 (6th Cir. 1985). The
jury convicted Jeter on the theory that the information in the
carbon paper constituted a thing of value in excess of the
statutory minimum. Id. at 680. Similarly, in United States v.
Jordan, the government alleged the defendants conveyed
information contained within criminal records. 582 F.3d 1239,
1246 (11th Cir. 2009). These records were contained within the
National Crime Information Center (NCIC) database. Id. The
government appropriately did not allege the NCIC database itself
was stolen because, of course, it was not. Id.

In DiGilio, the government charged the defendants with
converting "photocopies of official files of the Federal Bureau
of Investigation." 538 F.2d at 975. The court held the evidence

16 The military judge referred to information as "a thing of
value," not a "record," in her instructions on the offenses: "A
'thing of value' can be tangible or intangible property.
Government information, although intangible is a species of
property and a thing of value." (App. Ex. 625 at 3).

61

was sufficient to sustain a conviction under Section 641,
reasoning the defendant used government resources to make the
copies, and thus the copies belonged to the government. Id. at
977. In short, federal indictments under Section 641 invariably
charge defendants with stealing information or copies of records
when information or copies are stolen, not the original records
or the medium by which records and information are stored.
Allowing the government to charge a theft of databases in this
case, but instead prove the theft of copies of records and
information, deprived PFC Manning of notice of the charges
against her.

C. Changing the nature of the property stolen or converted
after the presentation of evidence irreparably prejudiced PFC
Manning's defense.

The distinctions among these terms are not merely semantic.
The specific property alleged to be stolen is of crucial
significance in a prosecution under Section 641 and directly
impacts the focus of the defense at trial. When the military
judge changed the plain-English definition of the charged
property and thus the legal focus of the crime, after the
presentation of all evidence in the case, PFC Manning's ability
to mount an effective defense was substantially prejudiced.

From the earliest stages of this court-martial until the
military judge's ruling on the R.C.M. 917 motion (the day before
closing arguments), the defense was unaware it had to defend

62

against a charge of stealing "information," "records," or
"copies." (App. Ex. 614 at 1-2). The entire theory of the
defense with respect to these specifications was that PFC
Manning did not steal or convert "databases" as charged. (See,

e.g., R. at 7741, 7862, 7933; see also App. Ex. 614 at 5).

In her ruling on the R.C.M. 917 motion, the military judge
faulted the defense for not seeking more specificity as to the
items charged. (App. Ex. 613 at 5). But from the inception of
this case through the presentation of evidence, the government
declared its intent to prove PFC Manning stole actual databases,
not information. The government's intent to prove the theft of
"databases" was evident not only from the language on the charge
sheet, but also from its response to the defense's request for a
bill of particulars, the government-proposed instructions for
the offenses, and the government's focus throughout trial on the
value of the databases themselves. Indeed, it is apparent from
this record that the government merely assumed the term
"database" automatically included every possible thing that
could be put inside a database.

In its 8 March 2012 response to the defense motion for a
bill of particulars, over a year before the close of the
government's case on the merits, the government stated the
property at issue in each specification "is clear," PFC Manning
stole "specific, identified databases." (App. Ex. 14 at 3). In

63

each of the government's proposed instructions on the Section
641 offenses involving databases, the government proposed the
valuation element of the offense as follows: "That the [CIDNE-I,
CIDNE-A, DoS NCD, and SOUTHCOM] database was of a value of more
than $1,000." (App. Ex. 159 at 9, 13, 14, 17)(emphasis added).
Throughout the government's presentation of evidence, it
attempted to prove the value element of Section 641 by showing
the cost of creating and maintaining the databases themselves.

(See, e.g., Pros Ex. 115; R. at 8307-16 (CIDNE), 9059-60 (DoS
NCD)).

Defense counsel, reasonably relying on the government's own
representations, could be under no obligation to further ask the
government whether it meant "information" or "copies of records"
when it used the seemingly unambiguous term "database." Had the
defense been on notice the term "database" included
"information," its approach to the case would have been markedly
different.

First, the defense would have litigated early on whether
Section 641 even applies to the theft or conversion of
intangible property such as information. (App. Ex. 614 at 5).
Military courts have long held Article 121, UCMJ, does not
proscribe the theft of intangible property because of the common
law requirement "that the object of the larceny be tangible and
capable of being possessed." United States v. Mervine, 26 M.J.

64

482, 484 (C.M.A. 1988); see also United States v. Stevens, 75

M.J. 548, 551 (N.M. Ct. Crim. App. 2015)(holding "electronic

media without corporeal form do not fall within the ambit of
Article 121.")

Whether the same holds true in a Section 641 prosecution
under clause 3 of Article 134 is an issue of first impression in
the military justice system. Although the majority of federal
circuits hold Section 641 applies to intangible property such as
government employee time and confidential information, the Ninth
Circuit disagrees. Chappell v. United States, 270 F.2d 274, 276
(9th Cir. 1959)(holding Section 641 is inapplicable to
intangible property); United States v. Tobias, 836 F.2d 449, 451
(9th Cir. 1988)(reaffirming the Ninth Circuit's view on this
subject in the context of classified information); see also
Truong Dinh Hung, 629 F.2d 908 at 928 ("Whatever the content of
'thing of value' in the context of other types of government
information, this phrase may not be read to include classified
information within § 641."). The defense had no occasion to
litigate this issue because PFC Manning was not charged with
stealing information.

Nonetheless, the military judge ruled intangible
information is "a thing of value" under Section 641, but only
after finding "information" is necessarily included in the term
"database" a day before closing arguments. (App. Ex. 613 at 5).

65

This ruling on a pivotal issue of first impression after the
defense had presented its entire case prejudiced PFC Manning's
defense and deprived her of the ability to tailor her defense to
the government's actual theory of the property stolen or
converted.

Second, if the defense knew PFC Manning was charged with
stealing or converting "information," it would have sought an
expert on the valuation of information. (App. Ex. 614 at 6).
However, since the government charged PFC Manning with stealing
databases, such an expert was unnecessary because any allegation
PFC Manning stole the databases could be, and was, rebutted
through the government's own witnesses. (R. at 7741, 7862, 7933;
Pros. Exs. 115, 116).

Once the government realized it was having trouble proving
the value of the actual databases, it shifted its valuation case
and presented evidence on the value of information within the
databases through its very last witness on the merits, Mr.

Lewis, a counterintelligence expert. (R. at 9465-771 (portions
classified)). However, during several interviews with the
defense team before his testimony, Mr. Lewis repeatedly stated
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 value any documents or information. (App. Ex. 614 at
6; see also statement of defense security expert appended to

66

App. Ex. 614). Mr. Lewis maintained this position on the eve of

his actual testimony. (App. Ex. 614 at 6).

Despite these last-minute representations to the defense,
Mr. Lewis suddenly testified he could in fact value information.

(R. at 9539 (redacted)). Thus, not only was the defense unaware
it had to defend against an allegation of stealing information,
it was also unaware the government would seek to prove the value
element under Section 641 by valuing information instead of
databases.

Mr. Lewis' testimony lacked the hallmarks of reliable
expert testimony. (See Assignment of Error III.C). Had the
defense known the military judge would allow the government to
value "information," and that Mr. Lewis would testify contrary
to his multiple previous representations, defense counsel would
have sought an expert to provide a countervailing opinion or at
a minimum enable the defense to better cross-examine him. (App.
Ex. 614 at 6). The defense also could have filed a motion to
preclude Mr. Lewis from testifying and from being qualified as
an expert. Finally, the defense could have sought through
discovery the source documents underlying Mr. Lewis' opinion on
valuation.17 (App. Ex. 614). However, given the representations

17 These documents, their relation to Mr. Lewis' opinion on
valuation, and his failure to consider them in forming his
opinion, are further discussed in Assignment of Error III.C. at
page 110 and the classified supplement at page 20.

67

of both the government and Mr. Lewis up to the point of his
testimony, the defense reasonably took none of these actions and
continued its focus on the databases PFC Manning was actually
charged with stealing.

Even the government was unsure of what property it was
attempting to value at trial. Despite PFC Manning being charged
with stealing "databases," the military judge allowed the
government to offer evidence of property valuation through a
myriad of inconsistent and confusing approaches. Besides Mr.
Lewis attempting to place a value on the information within the
databases, the government also offered evidence of the "cost of
creating the information in the charged databases and records,
such as employee time and salary for data entry." (App. Ex. 613
at 8; R. at 8730-31, 8864-65, 8893-95, 8914-16, 10913). The
government attempted to offer evidence on the value of the
databases themselves, such as the "database management system,
infrastructure, or software."18 (App. Ex. 613 at 8; R. at 8310-
15, 8734-35, 9054-60, 10911-13).

The government's mix-and-match theory of valuation
demonstrates the lack of clarity as to which property was

18 The military judge ultimately excluded this evidence, citing a
lack of legal authority for valuing a database, or records and
information in a database, by reference to "the cost of creating
and maintaining the database management system, infrastructure,
or software." (App. Ex. 613 at 8).

68

allegedly stolen or converted. Whether PFC Manning was alleged

to have stolen information, records, or copies of records should
have been pled on the charge sheet. If PFC Manning was alleged
to have stolen information, then the value of the information
itself had to be established. If PFC Manning was charged with
the theft of government records, then the value of those records
had to be established. The value of the databases in which these
records or information were stored, and the value of any copies
produced from records in the databases, are entirely different
matters in terms of valuation. Under the Fifth and Sixth
Amendments, the defense must be on notice of what property the
government will value for purposes of proving a Section 641
offense.

The military judge erred to the substantial prejudice of

PFC Manning when she changed the nature of the charged property

after the presentation of evidence. Thus, there must be some

evidence PFC Manning stole or converted the actual databases in

question to sustain her Section 641 convictions.

2. The evidence fails to prove PFC Manning stole or converted
databases.

To prove theft under Section 641, the government had to
present evidence PFC Manning wrongfully took the databases from
the United States with the intent to deprive the owner of the
use and benefit temporarily or permanently. (App. Ex. 410a at

69

5). To prove conversion, the government had to present evidence

PFC Manning's misuse of the databases "seriously and
substantially interfered with the United States government's
property rights." (App. Ex. 410a at 6).

In Morisette v. United States, the Supreme Court held that
under Section 641 "[p]robably every stealing is a conversion,
but certainly not every knowing conversion is a stealing." 342
U.S. 246, 271 (1952). Thus, at a minimum, the government had to

present some evidence PFC Manning seriously and substantially
interfered with the government's property rights in the
databases.

A. There is no evidence PFC Manning seriously and
substantially interfered with the government's property rights
in the databases.

The government failed to present any evidence PFC Manning's
actions resulted in a serious or substantial interference with
the government's use of the databases in question. In United
States v. Collins, the government prosecuted a Defense
Intelligence Agency technical analyst for using the agency's
classified computer system to create and maintain hundreds of
documents relating to his ballroom dance activities. 56 F.3d
1416, 1417 (D.C. Cir. 1995). The government alleged Collins

converted, among other things, the agency's computer time and
storage space. Id. at 1418.

70

The court held the evidence was insufficient to support a

conversion because the government did not prove the defendant's
use of the system seriously interfered with the government's
property rights. Id. at 1421. The court reasoned that, although
Collins used the computer system for his personal activities,
there was no evidence this conduct "prevented him or others from
performing their official duties on the computer. The government
did not even attempt to show that appellant’s use of the
computer prevented agency personnel from accessing the computer
or storing information." Id. at 1421. See also United States v.
May, 625 F.2d 186 (1980)(reversing Section 641 conviction
because the district court failed to instruct the jury that
conversion required a finding that the conduct seriously
violated the government's property rights); United States v.
Kueneman, No. 94-10566, 1996 U.S. App. LEXIS 21810 (9th Cir.

Aug. 20, 1996)(unpublished)(reversing Section 641 conviction
where defendant improperly allowed his daughter to live in
government housing for the homeless because the "government
offered no evidence that it had other contemporaneous uses for
the HUD home.")

Similarly, there was no evidence presented in this case
that the databases themselves were moved, altered, corrupted,
changed, or taken away from the United States government.

Private First Class Manning did not provide WikiLeaks access to

71

the CIDNE, SOUTHCOM, or DoS NCD databases. As in Collins, there

is no evidence PFC Manning's actions rendered the databases
inaccessible to government employees.

To the contrary, the evidence shows the databases were used

in the same way both before and after PFC Manning's disclosure

of copies of records and information contained within them. Unit

witnesses testified there was no difference in the use of the

databases after WikiLeaks released the information. (R. at 7741,

7862, 7933). Mr. Bora's and Mr. Hoeffel's stipulations of

expected testimony also acknowledged there was no interference

with the government's use of the CIDNE databases:

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.

(R. at 8316, 8323; Pros. Exs. 115, 116) . Thus, the government

failed to prove PFC Manning seriously and substantially interfered
with the databases.

B. Even if "information" and "records" are necessarily
included in the definition of "database," the government failed
to present evidence PFC Manning stole or converted information
or records.

There is also no evidence the actual records contained
within the databases, or the information within those records,
were stolen or converted. The actual records and information

72

within the databases never left the government's possession.

They were always available to analysts and other government
personnel as needed. (R. at 7741, 7862, 7933; Pros. Exs. 115,
116).

In Morissette, the Supreme Court said, "[t]o steal means to
take away from one in lawful possession without right with the
intention to keep wrongfully." 342 U.S. at 271 (quoting Irving
Trust Co. v. Leff, 171 N.E. 569, 571 (N.Y. 1930)(emphasis in

original)). The Court contrasted stealing with conversion, which
does not require an "intent to keep" or a "taking." Id. at 272.
Thus, the Court simply confirmed a universally recognized legal
principle: stealing requires a taking with an intent to keep.

Here, the government failed to present evidence PFC Manning
took and intended to keep the records or information in the
databases. There was no taking because the records, and the
information in those records, never moved. They remained
available to the government and its analysts at all times
relevant to the specifications. PFC Manning did not, for
example, "cut and paste" the records and information from the
database or otherwise delete them, effectively "taking" them
from the government. She simply made a digital copy of the
records, leaving the originals untouched. At most, then, PFC
Manning took a digital copy of records. See Stevens, 75 M.J. at
551 ("[T]here was no 'trespassory taking' in this case because

73

Sony and Apple never lost possession of the media. There were
not 2400 fewer donuts on their shelves or one less copy of the
song 'Radioactive' by Imagine Dragons in their physical
inventory because of the taking.").

It necessarily follows there was no intent to keep the
records or information because PFC Manning never took them in
the first place. Even the military judge grappled with this
dichotomy in her ruling on the R.C.M. 917 motion:

[The theft or conversion of] electronic data
doesn't compare neatly to cases where the
defendant made photocopies of government
records, replaced the originals, and [stole or
converted] the photocopies. [With stealing or
converting digital records] , 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.

(App. Ex. 613 at 7). It is unclear why the military judge
distinguished the copying of digital information from the
copying of physical information. There is no legal authority for
this distinction. Accessing a database, making a digital copy of
a record in that database, and transmitting the digital copy to
a third party is no different than taking a photograph of a
classified memo in a cabinet drawer and sending the photograph
to someone not authorized to receive it. The military judge's
findings simply ignored that actual records and information in

74

the databases, which never left the government's possession, are

wholly distinct from the digital copies PFC Manning obtained.

PFC Manning also did not convert the records or information
because she did not "seriously and substantially interfere" with
their use by the government. The military judge found PFC
Manning converted the records and information because they were
classified, and thus PFC Manning interfered with the
government's rights to protect this information from
unauthorized disclosure. (App. Ex. 625 at 4-5).

At most, then, the government lost exclusive possession of
the information in the database. But it is questionable as to
whether Congress intended Section 641 to protect the
government's interest in the exclusive possession of its
information. Applying Section 641 in such a broad manner raises
First Amendment concerns. See Melville B. Nimmer, National
Security Secrets v. Free Speech: The Issues Left Undecided in
the Ellsberg Case, 26 Stan. L. Rev. 311, 319-323 (Jan.
1974)(arguing Section 641 is unconstitutional as applied to the
reproduction of government records, even if classified); see
also DiGilio, 538 at 977 (acknowledging this argument but
finding it inapplicable because defendants were charged with
converting copies produced with government time and resources,
not information); Truong Dinh Hung, 629 F.2d. at 925 (Section
641's "ambiguity is particularly disturbing because government

75

information forms the basis of much of the discussion of public

issues and, as a result, the unclear language of the statute
threatens to impinge upon rights protected by the first
amendment.")

In any event, PFC Manning was not charged with stealing
information, records, or copies of records. The evidence only
supports that she made digital copies of records and information
held within databases. The stealing or conversion of those
digital copies and information are entirely different offenses
than those charged. Thus, the evidence is legally and factually
insufficient to sustain PFC Manning's convictions for stealing,
purloining, or converting databases. Private First Class Manning
respectfully requests that this court set aside and dismiss
Specifications 4, 6, 8, and 12 of Charge II.

III.B.

WHETHER THE EVIDENCE WAS LEGALLY AND FACTUALLY
SUFFICIENT TO SUSTAIN PFC MANNING'S CONVICTION
FOR STEALING, PURLOINING, OR CONVERTING THE
"USF-I GAL" (SPECIFICATION 16 OF CHARGE II)?

Additional Statement of Facts

In Specification 16 of Charge II, the government charged
PFC Manning with stealing, purloining, or knowingly converting
"the United States Forces-Iraq Microsoft Outlook I SharePoint
Exchange Server global address list." (Charge Sheet). As with
the database specifications, the government did not allege PFC

76

Manning stole or converted "a copy" of the USF-I GAL or
"information" contained within it. (Charge Sheet). Also like the
databases, the USF-I GAL was unaffected by PFC Manning's actions
and continued to function and remain available on government
servers throughout the period relevant to the specification. (R.
at 8825, 9366).

A GAL is an interface in Microsoft Outlook that allows the
user to obtain email addresses, phone numbers, and additional
contact information of other users in an organization. (R. at
8857, 8799). In the words of a government witness, a GAL is
"just a list of email addresses." (R. at 8862). The USF-I GAL
contained approximately 160,000 email addresses in February
2010. (R. at 8820, 8826). Due to its large size, individual

units in Iraq did not have the USF-I GAL downloaded on their
servers. (R. at 8820-21). Maintaining the USF-I GAL on any one
system would "lock your system up." (R. at 8821).

Instead, individual units maintained separate, local GALs
on their own servers containing the information of users within
that unit. (R. at 8828, 8862, 8869, 9354-55). For example, an
army division under USF-I might have 30,000 users on its
separate GAL. (R. at 8821). To access the information of a user
on the larger USF-I GAL, a division user would have to conduct a

77

"targeted" search of that particular GAL. (R. at 8820-21).19
Brigades in Iraq also maintained their own GAL on their own
server. (R. at 8869, 9354-55). From a technical perspective, "a
single address list on a single server is a GAL." (R. at 8869).
Put simply, the USF-I GAL was one of many GALs in Iraq, as there
were multiple GALs on multiple servers for multiple units. (R.
at 8820-21, 8869, 9354-55).

1. The government's evidence that PFC Manning stole or converted
the USF-I GAL.

To prove PFC Manning stole or converted the USF-I GAL, the
government called as a witness Mr. Johnson, a forensic examiner.

(R. at 8422). Mr. Johnson testified he conducted a forensic
examination of PFC Manning's personal computer and discovered "a
large number of what appear to be exchange formatted email
addresses" in the unallocated space. (R. at 8458). "Unallocated
space" is deleted space on a computer. (R. at 8431). Mr. Johnson
testified these files were in the unallocated space because PFC
Manning deleted the contents of her computer. (R. at 8459).

Neither Mr. Johnson nor anyone else testified the email
addresses found on PFC Manning's computer were transmitted to
anyone prior to deletion. Mr. Johnson also did not testify as to

19 As an illustration, this would be similar to a user on Fort
Belvoir utilizing the dropdown menu in Outlook's address book to
access the GAL of another installation or organization, then
searching for a user within that organization.

78

whether these email addresses were in fact the USF-I GAL, or a

portion of it. He simply identified the fact that a large number
of email addresses existed on PFC Manning's computer. (R. at
8459).

Next, the government offered a stipulation of expected
testimony from another forensic examiner, Special Agent (SA)
Williamson. (R. at 8783, Pros. Ex. 143). Special Agent
Williamson examined an unclassified government computer PFC
Manning had used in Iraq. (R. at 8784; Pros. Ex. 143).

On this computer, SA Williamson found a large text file
that "appeared to be an extract of a Microsoft Exchange [GAL]."
(R. at 8788; Pros. Ex. 143). This text file contained
approximately 74,000 Microsoft Exchange-formatted e-mail
addresses. (R. at 9789; Pros. Exs. 48, 143). Like Mr. Johnson,

SA Williamson did not attempt to identify which GAL these email
addresses belonged to, if any. He "did not contact any
individual who could have given [him] the actual Iraq GAL, nor
did [he] compare the data in the files recovered . . . with the

actual Iraq GAL." (R. at 8789; Pros. Ex. 143).

Finally, the government called Chief Warrant Officer Four
(CW4) Nixon on two separate occasions to testify regarding the
nature of the USF-I GAL. (R. at 8795-843, 9337-67). The first
time CW4 Nixon testified, he stated there were approximately
160,000 users on the USF-I GAL in February 2010. (R. at 8826).

79

On cross-examination, however, he agreed there were
significantly fewer email addresses found on PFC Manning's
computer. (R. at 8827). He also acknowledged he did not compare
the email addresses found on her computer to the actual USF-I
GAL because the USF-I GAL was not provided to him. (R. at 8837-
38).

On re-direct, the government for the first time attempted
to connect the email addresses found on PFC Manning's computer
to the USF-I GAL. (R. at 8838-39). To this end, CW4 Nixon
testified he recognized "a couple system administrator names
that belonged to USF-I headquarters" from the email addresses
found on PFC Manning's computer. (R. at 8839). However, this was
the extent of the testimony on this point—he did not testify the
email addresses on her computer were in fact the USF-I GAL or a
portion of it.

The second time CW4 Nixon testified, he acknowledged that a
brigade is the lowest Army echelon of command with its own
separate GAL. (R. at 9354-55). He agreed in general terms that a
brigade's GAL "plugs into" a division's GAL, and a division's
GAL "plugs into" USF-I's GAL. (R. at 9355). He further agreed
that the email addresses found on PFC Manning's computer
belonged to a "division-level GAL," not a brigade GAL or the
USF-I GAL. (R. at 9356). However, he did not say this "division-
level GAL" possessed by PFC Manning in fact "plugged into" the

80

USF-I GAL, nor did he elaborate at all on the significance of
"plugging in" to a GAL.

2. The government's evidence on the value of the USF-I GAL.

The government proceeded under three theories to prove that
the value of the USF-I GAL exceeded $1,000. First, the
government sought to prove the cost of entering email addresses
into the system. Chief Warrant Officer Four Rouillard testified
that soldiers ranking E-4 and above spent approximately ten
minutes entering a user's email account into a GAL. (R. at 8865,
8893). Thus, the government argued it took 740,000 minutes, or
over 12,000 hours, to enter 74,000 email addresses into the
system. (R. at 11048). In 2010, an E-4's base pay was $1,800 per
month, which equates to eleven dollars per hour during a forty-
hour work week. (R. at 11048). At this rate, the government
argued, it would cost well over $1,000 to produce the USF-I GAL.
(R. at 11048-49).

Second, the government attempted to value the GAL by
reference to the cost of the software and physical
infrastructure necessary to maintain it. (R. at 9337-52). The
military judge rejected this approach and excluded the evidence.
(App. Ex. 613 at 8).

Finally, the government sought to prove the market value of
the information within the USF-I GAL on the "thieves' market"
through its counterintelligence expert, Mr. Lewis. A detailed

81

discussion of this testimony is included in Assignment of Error

III.C.

The defense moved for a finding of not guilty under R.C.M.
917 as to Specification 16 of Charge II. (App. Ex. 596). The
military judge denied the motion. (App. Ex. 613). Additional
facts necessary to dispose of this issue are discussed below.

Law and Argument

1. There is no evidence PFC Manning stole or purloined "the USF-
I GAL," or "a portion of" it.

The evidence in this case only shows there were Microsoft
Exchange-formatted emails in the unallocated space of PFC
Manning's personal computer and on a government computer she
used. (R. at 8459, 8788; Pros. Ex. 143). However, the government
did not charge PFC Manning with stealing or converting "email
addresses." Specification 16 of Charge II alleged PFC Manning
stole or converted a specific item of property—the "USF-I GAL."

(Charge Sheet).

In 2010, the USF-I GAL was not the only GAL in Iraq. (R. at
8869). There were others, as CW4 Nixon testified. Brigades,
divisions, and USF-I (the corps) maintained their own separate
GALs on their own servers. (R. at 9354). While there were email
addresses found on PFC Manning's computers, the government
presented no evidence as to which GAL these email addresses
belonged to.

82

In fact, the government's own witness testified the email

addresses on PFC Manning's computer were not the "USF-I level
GAL," but instead a "division-level GAL." (R. at 9356-57). The
USF-I GAL contained 160,000 email addresses but PFC Manning
possessed no more than 74,000. (R. at 8826, 9789). According to

CW4 Nixon, this discrepancy was due to the fact that it was not
in fact the USF-I GAL on PFC Manning's computer. (R. at 9357).

To save this specification, the military judge allowed the
government to amend it to allege the theft of "a portion of" the
USF-I GAL under the theory that the email addresses must have
been a subset of this larger GAL. (R. at 10815-19). But nowhere
in the record is it established that the "division-level GAL"
possessed by PFC Manning was in fact "a portion of" the USF-I
GAL.20

Not only did a government witness affirmatively testify PFC
Manning was not in possession of the actual USF-I GAL, but no
witness even compared the USF-I GAL as it existed in 2010 to the
email addresses on PFC Manning's computer. Mr. Johnson simply
examined PFC Manning's personal computer and found "exchange
formatted email addresses" in the unallocated space. (R. at
8458). Special Agent Williamson similarly examined a government
computer used by PFC Manning and found what "appeared to be an

20 As argued below, the military judge abused her discretion in
allowing this major amendment over defense objection.

83

extract of a Microsoft Exchange [GAL]." (R. at 8788). Neither
witness conducted an examination of the actual USF-I GAL, so
they could not say PFC Manning ever possessed it. (R. at 8789;
Pros. Ex. 143).

CW4 Nixon also did not examine the actual USF-I GAL and
compare it to the email addresses on PFC Manning's computer. (R.
at 8837-38). He could do no more than recognize that a few email
addresses and "group accounts" found on PFC Manning's computer
belonged to USF-I at some previous point in time. (R. at 8839).
But he acknowledged some of these individuals "weren't
necessarily USF-I entities," instead belonging to "different
organizations all over Iraq." (R. at 8839).

Moreover, the government did not admit the actual USF-I GAL
into evidence. (See Record of Trial Index of Prosecution
Exhibits Admitted at vol. 41, pp. 140-46). Thus, the court had
nothing to compare with the email addresses found on PFC
Manning's computer to reach a finding that she in fact stole the
USF-I GAL, or a portion of it.

There is a complete lack of evidence as to the exact nature
of the email addresses found on PFC Manning's computer. The
court apparently assumed these addresses were "a portion of" the
USF-I GAL because they were ".mil" exchange-formatted addresses,
downloaded in Iraq. There is insufficient evidence to support
this assumption, especially since there were multiple GALs in

84

Iraq at the time. (R. at 8820-21, 8869, 9354-55). Accordingly,

the evidence is legally and factually insufficient to prove PFC

Manning possessed "the USF-I GAL" or "a portion of" it and

Specification 16 of Charge II should be set aside and dismissed.

2. Even if the evidence is sufficient to support a finding PFC
Manning possessed "a portion of" the USF-I GAL, the military
judge's amendment of the specification at the eleventh hour
severely prejudiced PFC Manning's defense.

In support of the R.C.M. 917 motion, defense counsel argued
the government failed to offer evidence that the entire USF-I
GAL at issue in Specification 16 of Charge II was stolen or
converted as charged. (R. at 10510-11; App. Ex. 596). The
government conceded that only 74,000 email addresses were found
on PFC Manning's personal computer, despite the USF-I GAL
consisting of approximately 160,000 users. (R. at 10816).

In response to the defense's assertion that the government
thus failed to prove a theft or conversion of the entire USF-I
GAL as charged, the government moved to except the words "to
wit:" and substitute therefor the words "to wit: a portion of"
in the specification. (R. at 10815-19).

The defense objected, arguing such an amendment would be a
major change because it would change the identity of the charged
property and mislead PFC Manning as to the offense charged. (R.
at 10814, 10819-22). The military judge granted the motion.

(App. Ex. 613 at 6; R. at 10907).

85

A military judge's decision permitting the government to

amend a specification after arraignment, over defense objection,
is reviewed for an abuse of discretion. United States v.
Longmire, 39 M.J. 536, 537 (Army Ct. Crim. App. 1994).

Minor changes in specifications are permitted "at any time
before findings are announced, if no substantial right of the
accused is prejudiced." R.C.M. 603(c). Major changes "may not be
made over the objection of the accused unless the charge or
specification affected is preferred anew." R.C.M. 603(d). Major
changes are "those which add a party, offenses, 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(a). A major change after arraignment
deprives an accused of due process and strips the court-martial
of jurisdiction to hear the amended charge. Longmire, 39 M.J. at
538.

The military judge may modify the charges and
specifications to conform the findings to the evidence under the
authority to make "exceptions and substitutions." United States
v. Parker, 59 M.J. 195, 197 (C.A.A.F. 2003)(citing R.C.M.

918(a)(1)). However, "[e]xceptions and substitutions may not be
used to substantially change the nature of the offense . . . ."

R.C.M. 918(a)(1).

86

In United States v. Sullivan, the CAAF adopted a two-

pronged test from the U.S. Courts of Appeals to determine if an
amendment to a specification is major or minor. 42 M.J. 360, 365
(C.A.A.F. 1995). The first prong is whether the change results
in an additional or different offense. Id. This prong "usually
is satisfied if the charge is altered to allege a lesser-
included offense." Id.

The second prong is whether the change prejudices a
substantial right of the accused. Id. This prong is satisfied
"if the amendment does not cause unfair surprise. The evil to be
avoided is denying the defendant notice of the charge against
him, thereby hindering his defense preparation." Id.

Applying the Sullivan test here, the military judge's
amendment to Specification 16 of Charge II was a major change
resulting in a different offense, not a lesser-included one. The
amendment also resulted in unfair surprise, depriving PFC
Manning notice of the charges against her.

A. The amended specification alleged a different offense.

Under the first Sullivan prong, the amendment to
Specification 16 of Charge II created a different offense than
the one charged because it fundamentally changed the nature of
the property alleged to be stolen or converted. The government
charged PFC Manning with stealing "the" USF-I GAL. (Charge
Sheet). After the evidence failed to prove a theft of "the" GAL,

87

the military judge allowed the government to amend the
specifications to allege the theft or conversion of only "a
portion of" it.

But contrary to the military judge's ruling that this
change merely alleged a lesser included offense, "a portion of"
the USF-I GAL is qualitatively different than the entire GAL.
First, nowhere in the record is it established that the
"division-level GAL" possessed by PFC Manning was "a portion of"
the USF-I GAL. Second, even assuming this division-level GAL
somehow was "a portion of" the USF-I GAL, the evidence shows it
was still a separate GAL maintained on a separate server, and
thus an entirely different item of property than what was
originally charged. (R. at 8869).

By alleging PFC Manning stole or converted the USF-I GAL,
the government alleged she stole a specific item of property on
a specific server containing 160,000 email addresses. The
evidence failed to establish this item of property was stolen,
and thus the modified Specification 16 of Charge II alleged a
new offense and the first prong of the Sullivan test is met.

B. The amended specification caused unfair surprise, denied
PFC Manning notice of the charge against her, and hindered her
defense preparation.

The amendment to Specification 16 of Charge II from "the
USF-I GAL" to "a portion of the USF-I GAL," after the close of
all evidence in the case, caused unfair surprise and hindered

88

PFC Manning's ability to effectively prepare a defense. Given
the language of the original specification, the defense
appropriately focused its cross-examination of CW4 Nixon, the
government witness most relevant to the GAL, on whether the
email addresses found on PFC Manning's computer constituted "the
USF-I GAL." (R. at 8825-38, 9354-57). The defense was unaware
during the presentation of evidence that the appropriate line of
inquiry was instead whether the email addresses found on PFC
Manning's computer were "a portion of" the USF-I GAL.

Chief Warrant Officer Four Nixon testified on two separate
occasions regarding the nature of a GAL. (R. at 8795-843, 9337-
67). At no point during this extensive testimony did the
government or the defense explore in any detail whether the
email addresses found on PFC Manning's computer were "a portion
of" the USF-I GAL.

The first time CW4 Nixon testified, he said he recognized a
couple of names of individuals who belonged to USF-I
headquarters from the addresses found on PFC Manning's computer,
but he did not testify these email addresses were in fact "a
portion of" the USF-I GAL. (R. at 8839). The second time he
testified, he agreed in general terms that a brigade's GAL
"plugs into" a division's GAL, and a division's GAL "plugs into"
USF-I's GAL. (R. at 9355). However, nowhere did CW4 Nixon
elaborate on whether the specific division-level GAL found on

89

PFC Manning's computer was "a portion of" the USF-I GAL, whether

it "plugged into" the USF-I GAL, or whether "plugging into" a
higher-level GAL even meant it was "a portion of" that GAL.
Indeed, it is difficult to gain a coherent understanding at all
from this record as to how other GALs interplayed with the USF-I
GAL. Had PFC Manning been charged at the outset with stealing "a
portion of" the GAL, this area could have been explored by the
parties and an adequate record created for appellate review.

Instead, the defense was unaware it was defending against a
charge of stealing or converting "a portion of" the USF-I GAL
and had no occasion to further press CW4 Nixon on the nature of
the division GAL on PFC Manning's computer, or what he meant
when he said lower-level GALs "plug into" higher-level GALs. At
the time of the testimony, PFC Manning could have no idea the
specification would change and this issue would take on such
relevance later in the proceeding. The military judge relied on
this undeveloped testimony to later find that a division GAL was
"a portion of" the USF-I GAL, severely prejudicing PFC Manning's
ability to mount an effective defense. (R. at 10817; App. Ex.

613 at 6).

In short, when the military judge allowed the government to
change the nature of the property from the USF-I GAL to "a
portion of" the USF-I GAL after the presentation of evidence,
the defense was deprived of a full and fair opportunity to

90

challenge the assertion that the email addresses found on PFC
Manning's computer were in fact "a portion of" the USF-I GAL.
Based on the evidence presented, this assertion was questionable
at most, and could have been subjected to a rigorous cross-
examination at least.

Accordingly, even if this court finds the evidence is

sufficient to support a finding PFC Manning possessed "a portion

of" the USF-I GAL, the military judge's amendment of the

specification was an abuse of discretion and Specification 16 of

Charge II should be set aside and dismissed.21

3. There is no evidence PFC Manning's possession of email
addresses was "wrongful" or with the "intent to deprive."

The evidence demonstrates PFC Manning deleted a list of
email addresses from her computer. (R. at 8459). There is no
evidence she transmitted these addresses to WikiLeaks or anyone
else, nor is there evidence she attempted to do so at some

21 This argument applies with equal force to the military judge's
amendments to Specifications 4 and 6 of Charge II regarding the
CIDNE databases. Defense counsel argued the government failed to
offer evidence that the entire CIDNE databases at issue in these
specifications were stolen or converted as charged. (App. Ex. R.
at 10712-14). The government conceded the records and
information allegedly stolen or converted made up only twenty-
four percent of the charged CIDNE databases. (R. at 10809-10).
However, these digital copies of SIGACT reports were not, in any
way, "a portion of" the CIDNE databases. The copies of SIGACTS
were separate from the databases themselves, and did not exist
until they were created by PFC Manning after accessing the
databases. Thus the amendments to Specifications 4 and 6 of
Charge II also alleged different offenses and caused unfair
surprise.

91

point. The government presented no evidence WikiLeaks ever
possessed or published any of these email addresses. Put simply,
PFC Manning did nothing with these email addresses other than
briefly possess and then delete them.

To prove a theft or conversion of the USF-I GAL under
Section 641, the government had to show PFC Manning "wrongfully"
took it from the government with "the intent to deprive." (App.
Ex. 410a at 5). However, the government did not prove simple
possession of a list of email addresses was wrongful, nor did
the government prove PFC Manning intended to deprive the
government of the email addresses.

The government presented no evidence PFC Manning was not
permitted to view, save, or download the email addresses to her
computer. On the contrary, the government's own witnesses
confirmed there was no directive prohibiting soldiers from
accessing or downloading .mil email addresses from any GAL, much
less the USF-I GAL. According to CW4 Rouillard, nothing
prevented any soldier from downloading the email addresses of
other soldiers in his or her unit. (R. at 8923). Chief Warrant
Officer Two Balonek and CW4 Nixon were similarly unaware of any
prohibition against downloading email addresses. (R. at 7861,
8826). Special Agent Williamson's stipulation of expected
testimony acknowledged, "The DOD warning banner and legal notice
did not explicitly prohibit the downloading of e-mail addresses.

92

I am not aware of any restriction or guidance that precludes one

from downloading e-mail addresses from Outlook." (R. at 8786;
Pros. Ex. 143).

Consider an Army judge advocate who downloads the email
addresses of other judge advocates, takes them home, and then
ultimately deletes those email addresses. These actions are no
more wrongful than those of PFC Manning. Thus, the evidence
established only that PFC Manning lawfully downloaded email
addresses from what appears to be a "division GAL," then deleted
them.

Moreover, the fact that the email addresses were found in
the unallocated space of PFC Manning's computer, and thus
deleted, proves a lack of "intent to deprive the government of
the use and benefit" of the addresses. (App. Ex. 410a). She
never sent the email addresses to anyone, and the government's
witnesses verified the email addresses were always accessible to
government personnel. (R. at 8825, 9366). See United States v.
Schempp, ARMY 20140313, 2016 CCA LEXIS 147, at *5-6 (Army Ct.
Crim. App. 26 Feb. 2016)(mem. op.)(holding convictions for
possession of child pornography were legally insufficient
because appellant did not "knowingly possess" the images found
in unallocated space).

The evidence failed to establish PFC Manning's simple
possession of email addresses at some point in time was wrongful

93

and with the intent to deprive, and thus failed to establish she

stole them. Accordingly, this court should set aside and dismiss
Specification 16 of Charge II.

4. The government failed to prove the email addresses on PFC
Manning's computer were of a value greater than $1,000.

Even assuming PFC Manning wrongfully took a portion of the
USF-I GAL with the appropriate intent, the government still
presented insufficient evidence to support a finding that the
list of email addresses found on PFC Manning's computer were of
a value greater than $1,000. Section 641 provides, "'Value'
means face, par, or market value, or cost price, either
wholesale or retail, whichever is greater." 18 U.S.C. § 641.

The government first attempted to establish value for this
offense through the testimony of CW4 Nixon. He testified about
the infrastructure, hardware, and software resources required to
maintain the GAL. (R. at 8804-18, 9338-52). However, the
military judge did not allow this method of valuation due to a
lack of legal authority to support it. (App. Ex. 613 at 8).

Next, the government attempted to establish value through
the testimony of CW4 Rouillard. The trial counsel asked him how
much a foreign adversary would pay for email addresses in order
to conduct "spear-phishing" campaigns. (R. at 8890). He
responded, "So, honestly, monetary value is hard for me to
assess . . . ." (R. at 8890). Based on this and other responses,

94

the government withdrew its request to qualify him as an expert

in valuing the GAL. (R. at 8892). Thus, the government was left
to rely only on CW4 Rouillard's testimony regarding the cost of
employee data entry and Mr. Lewis' testimony regarding the
"thieves' market" value of "information." (R. at 8865, 9466-
772).

The insufficiency of Mr. Lewis' testimony regarding value
is discussed in Assignment of Error III.C. Should this court
find the military judge's admission of his testimony was an
abuse of discretion, the only remaining evidence of the GAL's
value is CW4 Rouillard's "cost of production" testimony. But
this testimony is also flawed.

First, the cost of inputting data into the GAL does not
reflect the "cost price" of what PFC Manning in fact possessed
on her computer—a digital copy of a list of email addresses. As
noted by the military judge, "cost price" refers to the "cost of
producing or creating the specific property allegedly stolen,
purloined, or knowingly converted." (App. Ex. 410a)(emphasis
added). But the list of email addresses on PFC Manning's
computer did not "cost" the government thousands of dollars. The
actual GAL created by government employees remained functional
and in the government's possession at all times relevant to the
offense. (R. at 8825, 9366). Instead, the government had to
establish the "cost price" of the list PFC Manning actually

95

possessed, which required minimal, if any, government resources

to create.

Federal case law illustrates this point. In DiGilio, the
court noted the distinction between a theft of original records
and a theft of copies of those records. 538 F.2d at 977.
Rejecting the defense's argument that copies are not "records"
under Section 641, the court held the stolen copies were the
property of the government due to the appellant's use of
government time, equipment, and supplies to produce the copies.
Id. The court noted the government did not produce any evidence
of the "cost price" of these stolen copies, instead relying on
"thieves' market" value. Id. at 979. Thus, the court recognized
that the appropriate "cost price" of copies is determined by
reference to the costs incurred by the government in the
production of those copies, not by reference to the cost price
of the originals. Had the case involved "memorization of
information contained in government records, or even copying by
thieves by means of their own equipment," the "cost price"
analysis would necessarily have been different because the
copies would have cost the government nothing. Id. at 977.

Similarly, in Jeter, the court found the cost price of the
grand jury transcript copies stolen by the defendant "certainly
could not represent a 'thing of value' over [the statutory
minimum] and involve anything more than a misdemeanor

96

violation." 775 F.2d 680. These copies cost only $89.10 to
produce. Id. The court instead relied on the fact Jeter was
charged with stealing "information" within the copies, and sold
that "information" to a third party on the thieves' market.22 Id.

Thus, in this case, the cost to the government of several
E-4s inputting email addresses into the GAL is irrelevant to the
"cost price" of the list of email addresses PFC Manning
possessed. Under a legitimate "cost price" analysis, this list
was worth nothing more than the CD PFC Manning used to store it
on, or any government time or money PFC Manning used as she
created the list. Indeed, the list did not even exist until PFC
Manning created it by making the digital copies. Since the
government presented no evidence of the actual cost of the email
addresses at issue, it failed to establish value under a "cost
price" approach.23

Second, even assuming the "cost price" of the GAL can be
attributed to the list PFC Manning possessed, the method the

22 Unlike in Jeter, however, PFC Manning was not charged with
stealing "information." Only the value of the "copies" can be
relevant here.

23 This reasoning applies equally to the value element of
Specification 8 of Charge II. The government introduced similar
"cost of employee entry" evidence to place a value on the
detainee assessment briefs contained within the SOUTHCOM
database. (R. at 8730-31). However, the cost to the government
of a GS-12 typing information into this database is irrelevant
to the actual cost price of the digital copies of the detainee
assessment briefs PFC Manning obtained.

97

government employed to determine this cost does not provide an

accurate indication of value. Chief Warrant Officer Four
Rouillard said that soldiers ranking E-4 and above spent
approximately ten minutes entering a user's email account into a
GAL. (R. at 8865, 8893). However, he was last in Iraq in 2007 to
2008, two years before PFC Manning's actions. (R. at 8853,

8857). While he trained soldiers during Advanced Individual
Training in how to generally set up a GAL, he did not have any
knowledge of how the USF-I GAL was set up in 2009 and 2010 in
Iraq. (R. at 8914).

Also, CW4 Rouillard acknowledged that some soldiers might
take more or less time than others to input the information, and
that it was even possible to create a "script" which would
automate the creation of email accounts into the GAL. (R. at
8915). Due to this possible variation in the methods by which a
GAL might be created and the fact that CW4 Rouillard did not
actually observe the creation of the USF-I GAL, the government's
"cost-price" valuation argument was based on an unreliable
mathematical calculation.

Chief Warrant Officer Four Rouillard's "cost-price"
testimony to value the GAL in excess of $1,000 was legally and
factually insufficient (and Mr. Lewis' "market value" testimony
was inadmissible). Thus, assuming the evidence on the remaining
elements of Specification 16 of Charge II is sufficient, this

98

court should affirm only the lesser included Section 641 offense

of stealing, purloining, or converting records or things of
value belonging to the United States with a value of $1,000 or
less and reassess the sentence accordingly.

III.C.

WHETHER THE MILITARY JUDGE ABUSED HER
DISCRETION BY ADMITTING TESTIMONY FROM THE
GOVERNMENT'S COUNTERINTELLIGENCE EXPERT ON
THE VALUE OF THE INFORMATION AT ISSUE IN
SPECIFICATIONS 4, 6, 8, 12 AND 16 OF CHARGE

II?

Additional Statement of Facts

The maximum punishment for a violation of 18 U.S.C. § 641
is confinement for ten years if the value of the property
alleged to be stolen, purloined, or converted exceeds $1,000. 18
U.S.C. § 641. If the value of the property is $1,000 or less,
the maximum punishment is confinement for one year. Id.

The military judge defined value for purposes of 18 U.S.C.

§ 641 as follows:

"Value" means the greater of (l) 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

99

specific property allegedly stolen, purloined,
or knowingly converted.

(App. Ex. 625 at 3)(emphasis added).

1. The government's claims regarding value under Section 641.

The government sought to prove the value element of the
Section 641 specifications by resort to a confusing array of
both "cost price" and "market value" methods of valuation. (App.
Ex. 599). Under the "cost price" method, the government employed
two separate theories. First, the government introduced evidence
purporting to show the cost of producing, creating, and
maintaining the actual databases and GAL in which the records
and information were stored. (CIDNE: R. at 8310-15; SOUTHCOM: R.
at 8734-35; DoS NCD: R. at 9054-60; GAL: R. at 8866-70, 9938-
52). The military judge excluded all evidence of this method of
valuation, finding it was not supported by any legal authority.
(App. Ex. 613 at 8).

Second, the government introduced evidence purporting to
show the cost of creating the information in the SOUTHCOM
database and the GAL, such as employee time and salary for data
entry. (SOUTHCOM: R. at 8730-31; GAL: R. at 8864-65, 8893-95,
8914-16). The military judge allowed this method of "cost price"
valuation. (App. Ex. 613 at 8). However, with respect to the
CIDNE and DoS NCD databases, the government did not introduce
any evidence of this nature and relied only on "market value."

100

The government did not offer any evidence of the "cost

price" of the digital copies of records, such as the cost of the
CDs PFC Manning used, the time she spent downloading the copies,
or the use of the government's information systems to obtain the
copies.

To prove "market value," the government introduced evidence
purporting to show the value on the "thieves market" of the
information contained within the databases and the GAL. (R. at
9465-771 (portions sealed)). This illustration shows the methods
the government used to value the property depending on the
specifications at issue:

Specification Valuation methods offered by government Valuation methods accepted by court
4 (CIDNE-I) 6 (CIDNE-A) 12 (DoS NCD) 1) Database management costs 2) Thieves' market value of information Thieves' market value of information
8 (SOUTHCOM) 1) Cost of information/records creation 2) Thieves' market value of information 1) Cost of information/records creation 2) Thieves' market value of information
16 (GAL) 1) Hardware/software maintenance costs 2) Cost of email account creation 3) Thieves' market value of information 1) Cost of email account creation 2) Thieves' market value of information

The military judge found the records and information in
Specifications 4, 6, 8, 12, and 16 were of a value greater than
$1,000. (App. Ex. 625 at 5). She determined this value by

101

reference to both "the cost of production of the information in

the records and the records, and, as an independent basis of
valuation for each specification, by the thieves market." (App.
Ex. 625 at 5). However, as illustrated by the above chart, the
only evidence of value admitted into evidence for Specifications
4, 6, and 12 (CIDNE and DoS NCD) was testimony regarding the

thieves' market value of information contained within the
databases.

2. The government's claims regarding market value of the
"information" at issue in the Section 641 specifications.

The only evidence offered by the government on the "market
value" of the information at issue in each of the Section 641
specifications was the testimony of Mr. Lewis, the Senior Expert
and Counterintelligence (CI) Advisor to the Directorate of
Science and Technology (DST) for the Defense Intelligence Agency
(DIA). (R. at 9466). In this capacity, Mr. Lewis advised the DST
on CI and counterespionage activities. (R. at 9466). The
government intended to qualify Mr. Lewis as an expert in CI and
"valuing government information by foreign intelligence
services." (R. at 9482).

Mr. Lewis defined CI as "the information and the activities
that we use to identify, disrupt, [sic] exploit our foreign
adversaries' intelligence services or international terrorism
organizations, [sic] keep them from defeating us." (R. at 9467).

102

He defined counterespionage as "an area of counterintelligence

that's really more focused on espionage investigations, really
focused on proving or disproving allegations against any
individual." (R. at 9467).

Mr. Lewis described two realms within the field of CI:
offensive CI operations and CI investigations. (R. at 9477).
Offensive CI operations are "clandestine activities that are
focused on individuals that we believe to be or [sic] known to
be involved in our adversaries' intelligence organizations or in
international terrorist entities." (R. at 9477).
Counterintelligence investigations are "those significant
investigations being conducted across the Department by the
military services or the defense agencies or the FBI." (R. at
9477).

After an extensive open-session overview of Mr. Lewis'
career in the CI field, the government moved to enter a closed
session to continue laying the expert foundation with classified
evidence. (R. at 9491). Before entering the closed session, the
military judge allowed the defense to cross-examine Mr. Lewis on
his qualifications. (R. at 9492).

During cross-examination, Mr. Lewis admitted he previously
told the defense team that he did not consider himself an expert
at valuing classified information. (R. at 9494). He also
admitted he could not put a specific value on any document. (R.

103

at 9506, see also statement of defense security expert appended

to App. Ex. 614). Mr. Lewis admitted he had never received any
training on valuing classified information for a foreign
intelligence service, or valuing information of any kind. (R. at
9496-500).

When discussing his CI experience, Mr. Lewis admitted that
he had never been an offensive CI agent, or "case officer,"
engaged in offensive CI operations or involved in the actual
sale of information. (R. at 9501). He also had never managed any
offensive CI operations. (R. at 9506). Instead, his experience
with offensive CI operations came from his "visibility" over
those operations as the Chief of the Counterespionage Division
and the Counterintelligence Field Activity. (R. at 9475, 9478,
9480, 9500-02). He admitted that, to the extent an offensive CI
agent might be involved in the sale of classified information,
it was the foreign adversary who determined the value of the
information, not the offensive CI agent. (R. at 9502, 9506-07).

Mr. Lewis had never been accepted by any court as an expert
in valuing classified information from a foreign intelligence
service. (R. at 9502). He did not subscribe to any journals
dedicated to the valuation of information, nor did he even know
if any existed, and he had never attended any conferences in
which the value of information was discussed. (R. at 9502-03).
Mr. Lewis had never heard of the term "thieves' market," yet

104

this was the "market" on which the government had retained him

to opine as an expert. (R. at 9504).

After the defense's open-session cross-examination of Mr.
Lewis, the military judge convened a closed session to continue
the government's foundational testimony on his expertise. (R. at
9510 (redacted)).24 His role as a senior CI advisor was to review
significant CI investigations and provide briefings to Congress
and the Under Secretary of Defense for Intelligence (USDI) on
their progress. (R. at 9514 (redacted)). In this capacity, he
had "visibility" over a number of significant CI investigations.
(R. at 9514-16 (redacted)).

Mr. Lewis testified that foreign intelligence organizations
pay for both classified and unclassified information. (R. at
9512, 9514 (redacted)). They attempt to acquire U.S. government
information by finding people willing to compromise it. (R. at
9526 (redacted)). During CI investigations, investigators
analyze the financial records of individuals suspected of
selling government information in order to find patterns of
abnormal financial behavior. (R. at 9513 (redacted)). Although

24 The following facts are derived from the redacted,
unclassified version of the record. Citations to this portion of
the record will include the term "redacted" to signify the
information is derived from the unclassified record. Additional
facts derived from the sealed classified record necessary to
dispose of this issue are addressed in the classified supplement
to this brief.

105

there is no legitimate market for the buying and selling of U.S.

government information, Mr. Lewis stated foreign intelligence
organizations purchase the information from people who steal it.
(R. at 9532 (redacted)).

Mr. Lewis' experience with offensive CI operations is
discussed in detail in the classified supplement to this brief
at pages 3-9.25 Mr. Lewis testified he was never directly
involved in an offensive CI operation. (R. at 9501, 9523
(redacted)). However, in his role as a senior CI advisor he
would obtain information on operations from offensive CI agents
for his briefings to the USDI and Congress. (R. at 9523
(redacted)). Due to the "visibility" he obtained from these
interactions with offensive CI agents, Mr. Lewis claimed he was
able to assess the cost of information sold to foreign
intelligence organizations. (R. at 9539 (redacted)). Based on
this experience, the government offered Mr. Lewis as an expert
in CI and the "value of government information to foreign
intelligence services." (R. at 9539-40 (redacted)). The defense
objected and requested to voir dire Mr. Lewis. (R. at 9540
(redacted)).

25 To fully understand the purported basis for Mr. Lewis'
testimony on valuation, it will be necessary to read this brief
in conjunction with the classified supplement.

106

During voir dire, Mr. Lewis admitted that everything he had

learned in the course of his oversight of offensive CI
operations came from reading case files or talking to case
officers. (R. at 9546 (redacted)). Mr. Lewis would read
"reporting from the field" in order to inform his briefings to
the USDI and Congress. (R. at 9547 (redacted)). Despite not
being involved in the conduct of these offensive CI operations,
Mr. Lewis never independently verified the accuracy of the facts
relayed in these reports because "the foundation of the whole
security system is trust." (R. at 9550 (redacted)).

The defense also questioned Mr. Lewis on his preparation to
testify in this case. (R. at 9551 (redacted)). To aid in his
preparation, Mr. Lewis asked an individual to compile a
"snapshot" of information from a report entitled the Essential
Elements of Information (EEI). (R. at 9551, 9616 (redacted)).

The EEI is a quarterly report containing information that is
further discussed in the classified supplement to this brief at
pages 9-11.

Generally, the EEI provides information on "what the
foreign adversaries were looking for." (R. at 9552, 9616
(redacted)). The EEI is generated from information obtained
through completed offensive CI operations. (R. at 9616, 9618
(redacted)). The EEI does not contain information on

107

unsuccessful operations in which U.S. government information did

not change hands. (R. at 9616, 9618 (redacted)).

Mr. Lewis did not request one of the actual quarterly EEI
reports, however, because the "EEI list gets voluminous over
time." (R. at 9552 (redacted)). Instead, he requested a
"snapshot of information" in the report from 2008 through 2010.
(R. at 9552-53 (redacted)). Mr. Lewis did not independently
verify the accuracy of the information provided to him in the
"snapshot" because he "was pretty certain" the individual gave
him information from the EEI report and he knew "some of it" to
be true. (R. at 9553 (redacted)).

Also in preparation for his testimony, Mr. Lewis asked
another individual to pull value data on the "most and least
successful offensive CI operations." (R. at 9553-56, 9661, 9685
(redacted)). He did not request value data from "unsuccessful or
failed CI operations." (R. at 9619, 9661 (redacted)). This data,
and its use by Mr. Lewis in conjunction with the EEI snapshot to
determine the value of information in this case, is further
discussed in the classified supplement to this brief at pages
12-15.

The government did not ask Mr. Lewis to place values on
documents relevant to this case until one week before his
testimony. (R. at 9557 (redacted)). At that time, government
counsel gave Mr. Lewis access to the DoS NCD database and asked

108

him to do some keyword searches for specific information. (R. at

9557, 9642 (redacted))(see classified supplement at page 15 for
further detail on these keyword searches). Government counsel
also showed Mr. Lewis about forty records from both the CIDNE-A
and CIDNE-I databases. (R. at 9558-59 (redacted)).

Mr. Lewis compared the results of his keyword searches of
the DoS NCD database and his review of the CIDNE documents to
the data he obtained earlier on "what the foreign adversaries
were looking for." (R. at 9559-61, 9642 (redacted)). Mr. Lewis
depended primarily on the historical data provided to him by
others to arrive at his valuation opinion. (R. at 9553-54, 9560-
61 (redacted)). He testified he could not otherwise accurately
render his opinion using only memory or experience. (R. at 9560-
64 (redacted)). However, he did not examine the records of the
actual offensive CI operations from which this data was derived.
(R. at 9560 (redacted)). He also did not consider whether the
information in the charged documents was already publicly known,
a factor which he admitted might have an impact on the value of
the information. (R. at 9642 (redacted)). Significantly, until
he began preparing for his testimony a week before he took the
stand, Mr. Lewis had never attempted to value a classified
document. (R. at 9566 (redacted)).

During oral argument on the government's motion to qualify
Mr. Lewis as an expert, the defense objected to Mr. Lewis being

109

qualified as an expert in offensive CI operations and valuation

of information. (R. at 9583 (redacted)). The defense did not
object to Mr. Lewis being qualified as an expert in CI
generally. (R. at 9583 (redacted)).

The government argued Mr. Lewis' extensive experience in CI
provided him specialized knowledge regarding U.S. government
information. (R. at 9584 (redacted)). The government also argued
the information Mr. Lewis relied on was reliable because he used
similar information to brief Congress, and the information is of
the type relied upon by professionals in the CI field. (R. at
9589, 9612, 9614-15 (redacted)). The government stated Mr. Lewis
could offer a reliable opinion on valuation by employing his CI
experience and his visibility over offensive CI operations,
reviewing the charged documents, and comparing those documents
to the data he received in preparation for the case. (R. at
9604-05 (redacted)).

The defense argued Mr. Lewis' opinion on valuation was
unreliable because it was not based on sufficient facts or data
and it was not the product of reliable principles and methods.

(R. at 9591-92 (redacted)). First, according to the defense, Mr.
Lewis' experience in offensive CI operations stemmed solely from
his recollection of having previously reviewed files from these
operations, but these operations were completed by actual case
agents, not Mr. Lewis. (R. at 9591-92, 9601-02 (redacted)).

110

Second, the defense argued Mr. Lewis' opinion as to

valuation depended on his memory of reviewing these files,
coupled with incomplete and unverified summaries of data
requested solely for the purpose of testifying in this case. (R.
at 9592-93, 9599 (redacted)). The defense argued this data was
unreliable because Mr. Lewis only requested information from the
EEI and other information regarding the most and least
successful offensive CI operations, but he did not request or
receive information on unsuccessful operations and thus did not
have a complete picture of the market at issue. (R. at 9592
(redacted)).

In an unclassified ruling supplemented by an oral
classified ruling, the military judge accepted Mr. Lewis as an
expert in CI. (App. Ex. 591; R. at 9658-65 (redacted)). She did
not accept Mr. Lewis as an expert in the value of U.S.
government information to foreign intelligence services because
this expertise was "too overbroad." (App. Ex. 591). However, the
military judge ruled Mr. Lewis could "testify and offer an
opinion with regard to value of certain charged documents upon
laying a proper foundation within the parameters of the oral
classified supplement to this ruling." (App. Ex. 591).

The military judge's classified ruling is discussed in the
classified supplement to this brief at page 16. She ruled that
Mr. Lewis was also qualified as an expert in offensive CI

111

operations, and the fact his experience came from oversight and

not direct involvement as a case agent went only to the weight
of his testimony. (R. at 9664 (redacted)). She further ruled
that Mr. Lewis could discuss his use of key terms to find
relevant information in the charged documents, compare this
information to the data he requested in preparation for his
testimony, and provide an opinion as to the value of the
information in the charged documents. (R. at 9664-65
(redacted)).

Mr. Lewis rendered his substantive testimony on value
during a closed session. This testimony is discussed in further
detail in the classified supplement to this brief at pages 17-
20. Mr. Lewis testified that between 2008 and 2010, certain
foreign intelligence services would value information within the
charged documents. (R. at 9641-9726 (redacted)).

On cross-examination, Mr. Lewis stated he based his
valuation opinions on his experience, the EEI "snapshot," and
the additional data on successful CI operations pulled for him
in preparation for his testimony. (R. at 9727-29 (redacted)).

Mr. Lewis could have asked the individual who pulled the EEI
snapshot to also pull the source information underlying the EEI,
but he did not. (R. at 9731-33, 9741 (redacted)). Also, Mr.

Lewis verified he did not request any information on failed CI
operations. (R. at 9734 (redacted)).

112

Mr. Lewis testified he spent about six hours reviewing the

charged documents and conducting keyword searches. (R. at 9736
(redacted)). As he reviewed the documents and conducted keyword
searches, he compared the results to historical information he
remembered and the data previously provided to him in
preparation for his testimony. (R. at 9738-39, 9755 (redacted)).
He did not refer to any source documents to verify that his
memory of the purported comparable information was accurate. (R.
at 9740-41, 9756-57, 9760, 9762 (redacted)). While testifying,
Mr. Lewis had difficulty recalling specific facts in the charged
documents that led him to his valuation opinions. (R. at 9764-68
(redacted)).

At the close of Mr. Lewis' examination, the defense moved
to strike his "valuation" testimony under Military Rule of
Evidence (M.R.E.) 702 because it was not based on sufficient
facts and was not the product of reliable principle and methods.
(R. at 9770 (redacted)). The military judge denied the motion,
citing her earlier ruling. (R. at 9770 (redacted)).

Standard of Review

A military judge's decision to admit or exclude expert
testimony over defense objection is reviewed for an abuse of
discretion. United States v. Sanchez, 65 M.J. 145, 148 (C.A.A.F.

2007). "A military judge abuses his discretion when (1) the
findings of fact upon which he predicates his ruling are not

113

supported by the evidence of record; (2) if incorrect legal
principles were used; or (3) if his application of the correct
legal principles to the facts is clearly unreasonable." United
States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).

Law and Argument

An expert's opinion is admissible only if the testimony:

(1) "is based upon sufficient facts or data," (2) "is the
product of reliable principles and methods," and (3) the
principles and methods have been applied "reliably to the facts
of the case." M.R.E. 702. The military judge is the gatekeeper,
"tasked with ensuring that an expert's testimony both rests on a
reliable foundation and is relevant." Sanchez, 65 M.J. at 149
(citing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597
(1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)).

The proponent of expert testimony must demonstrate the
following six factors: 1) the qualifications of the expert; (2)
the subject matter of the expert testimony; (3) the basis for
the expert testimony; (4) the legal relevance of the evidence;

(5) the reliability of evidence; and (6) whether the probative
value of the testimony outweighs other considerations. United
States v. Houser, 36 M.J. 392, 397 (C.M.A. 1993).

In Daubert, the Supreme Court set out four non-exclusive
factors which may be used by a judge in ensuring the reliability
of expert testimony: (1) whether the theory or technique can be

114

and has been tested; (2) whether the theory or technique has
been subjected to peer review and publication; (3) the known or
potential error rate and standards controlling the technique's
operation; and (4) the degree of acceptance within the relevant
scientific community. Daubert, 509 U.S. at 593-94; Kumho Tire,
526 U.S. at 141 (applying Daubert to non-scientific expert
testimony).

Although Houser was decided before Daubert, the decisions
are consistent and the military judge should consider the
factors from both cases. Sanchez, 65 M.J. at 149; United States
v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999). This inquiry is

"flexible" and the factors are not a "definitive checklist."
Sanchez, 65 M.J. at 149. Instead, the focus of the inquiry
should be "the objective of the gatekeeping requirement, which
is to ensure that the expert, 'whether basing testimony upon
professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.'"
Id. (quoting Kumho Tire Co., 526 U.S. at 152)(emphasis in
original).

The military judge abused her discretion when she failed to
adequately perform the gatekeeping role and admitted unreliable
opinion testimony that exceeded the scope of the witness'
expertise. Mr. Lewis' opinions on the value of information were

115

analytical leaps detached from his actual experience. He relied

upon incomplete data and an unreliable method concocted at the

eleventh hour in preparation for his testimony. Thus, a "fact

which distinguishes a violation punishable by imprisonment for

not more than one year from a violation punishable by

imprisonment for ten years" was "permitted to rest upon

conjecture or surmise." United States v. Wilson, 284 F.2d 407,

408 (4th Cir. 1960)(a case involving 18 U.S.C. § 641).

1. Mr. Lewis' testimony did not meet a single Houser or Daubert
factor.

The military judge did not cite Houser, nor is there any
indication she carefully applied its framework. An application
of the principles set forth in Houser and Daubert demonstrates
the decision to admit this evidence was manifestly erroneous
because it meets none of the factors set forth in those cases.
Mr. Lewis (1) was not qualified to opine on the value of
information, (2) the subject matter of his testimony exceeded
the scope of his actual qualifications, (3) the basis for his
testimony consisted of incomplete and unverified information,

(4) the method of valuation he employed was unreliable, and thus
his opinion was (5) irrelevant and (6) unduly prejudicial.

A. Mr. Lewis was not qualified to value information.

The military judge did not accept Mr. Lewis as an expert in
the "value of US government information to foreign intelligence

116

sources." (R. at 9664 (redacted); App. Ex. 591). Nonetheless,
she ruled that Mr. Lewis could offer an opinion about the value
of information in the charged documents because "[s]uch an
opinion is within the scope of Mr. Lewis' expertise in
counterintelligence." (R. at 9664 (redacted)). The record
refutes this conclusion. Mr. Lewis was not qualified through
"knowledge, skill, experience, training, or education" to offer
an opinion on the value of information. M.R.E. 702.

The military judge's unclassified findings of fact focused
exclusively on Mr. Lewis' twenty-nine years of experience in CI.
(App. Ex. 591). She found Mr. Lewis "was the senior level
subject matter expert for CI operations and investigations" at
DIA, had extensive experience in CI investigations, and retained
"over-sight over all DoD offensive CI operations." (App. Ex.
591). She acknowledged Mr. Lewis "has never been a case agent or
case agent manager for an offensive CI operation," but found his
lack of direct involvement as a case agent in operations went to
weight, not admissibility. (App. Ex. 591; R. at 9664
(redacted)).

Mr. Lewis' general experience in the field of CI is indeed
impressive. He had been involved in "the most sensitive and
significant espionage investigations," briefing Congress and
even winning awards. (App. Ex. 591). But his qualifications to
value information were nonexistent.

117

First, Mr. Lewis repeatedly admitted he did not have the

knowledge or skill necessary to offer an opinion on the value of
information, telling the defense during several interviews prior
to his testimony that he was not an expert in valuing classified
information and he could not value a specific document. (R. at
9494, 9506, see also statement of defense security expert
appended to App. Ex. 614). It was not until he was called upon
to testify at trial that he suddenly found himself to be so
qualified.

Second, Mr. Lewis had never received training or education
on valuing classified information for a foreign intelligence
service, or valuing information of any kind. (R. at 9496-500) .

To his knowledge, no such training exists within the Department
of Defense. (R. at 9497). He did not know of any professional
periodicals dedicated to the valuation of information and he had
never attended any conferences in which the value of information
was discussed. (R. at 9502-03).

Finally, and most importantly, Mr. Lewis lacked relevant
experience. He had never valued information of any kind prior to
PFC Manning's court-martial. (R. at 9500-01). The primary area
of Mr. Lewis' expertise was the investigation of espionage. (R.
at 9490). Every job he held in the field of CI was focused on
that. (R. at 9470-78, 9500-01). But the investigation of
espionage has little if anything to do with the valuation of

118

information, a fact Mr. Lewis acknowledged when he admitted he

had never exercised the skill of valuing classified information,
nor would he have occasion to, during the course of a CI
investigation. (R. at 9501).

The government's failed attempts to connect Mr. Lewis'
investigation experience to the "exchange of money" further
demonstrate this point. (R. at 9512 (redacted)). When asked how
money plays a role in CI investigations, Mr. Lewis explained
investigators simply analyze financial records to identify
unusual spending patterns, nothing more. (R. at 9512-13
(redacted)). There was no testimony that CI investigators
analyze the value of information actually exchanged. Thus, while
his experience may have qualified him to recognize sudden
affluence in suspected perpetrators of espionage, he had zero
experience in assigning value to a particular document or piece
of information.

Since CI investigators gain no expertise or ability to
value information, a significant focus of Mr. Lewis'
foundational testimony was on the extent of his experience in
offensive CI operations, where information is exchanged for
money. (R. at 9477, 9479-80, 9500-02, 9506-07, 9516-18
(redacted), 9523-25 (redacted), see classified supplement at
pages 3-9, 21-22). Apparently based on this testimony, the
military judge found Mr. Lewis was an expert in offensive CI

119

operations, despite the fact his experience in this field was
limited to "oversight." (R. at 9664 (redacted)).

Mr. Lewis never actually conducted offensive CI operations
himself. (R. at 9500-01). He also never managed a single
offensive CI operation. (R. at 9506). Everything he learned in
the course of his career about offensive CI operations came from
reading case files. (R. at 9546 (redacted)). Moreover, he
acknowledged that even offensive CI agents do not value
information, because the nature of these operations leaves that
task to the foreign intelligence service. (R. at 9502). In
short, Mr. Lewis' "oversight" of offensive CI operations never
placed him in a position to actually value U.S. government
information, or any other information for that matter.

The military judge's conclusion that this lack of
experience only "goes to weight" was manifestly erroneous
because no other area of Mr. Lewis' experience could arguably
qualify him to value information. By its nature, the extent of
his experience in offensive CI operations went to his
qualifications to offer an opinion on valuation, and thus its
admissibility.

Nothing in Mr. Lewis' "knowledge, skill, experience,
training, or education" qualified him to offer an opinion on the
value of classified information. Indeed, the military judge
expressly refused to accept Mr. Lewis as an expert in the value

120

of U.S. government information to foreign intelligence services.

(App. Ex. 591). Since even the military judge found he was not
an expert in valuing information, the question is "what is he an
expert about?" Wheeling Pittsburgh Steel Corp. v. Beelman River
Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001).

In Wheeling, the court found that a district court judge
abused his discretion in admitting the opinions of a hydrologist
specializing in flood risk management in a case involving flood
damage to goods stored in a warehouse. Id. The court found the
hydrologist, though "eminently qualified" to offer opinions on
flood risk management, lacked the qualifications to opine on
safe warehousing practices. Id. The court reasoned the expert
"lacked the education, employment, or other practical personal
experiences" to testify regarding the standard of care in the
warehousing industry. Id. Nor had the expert studied in his
formal education or written academically about the subject of
his testimony. Id.

Similarly, Mr. Lewis was eminently qualified to offer
opinions related to CI generally and CI investigations. But he
sorely lacked the education, employment, or practical experience
necessary to qualify him as an expert on the subject of
information valuation. In fact, he had no practical experience
whatsoever. He had never valued information during the course of
his employment in the CI field, nor had he studied the valuation

121

of information, before he was asked to do so at PFC Manning's
court-martial.

In Redman v. John D. Brush & Co., the Fourth Circuit held a
metallurgic engineer, though qualified to testify about the
properties and characteristics of metal, was not qualified to
testify about industry standards for the construction of safes.
111 F.3d 1174, 1179 (4th Cir. 1997). The expert "had never
before analyzed a safe, engaged in the manufacture or design of
safes, or received any training regarding safes." Id. At trial,
the expert acknowledged his only knowledge of safes was acquired
in preparation for his testimony. Id.

Like the metallurgic engineer analyzing a safe for the
first time at trial, Mr. Lewis had never before analyzed
information to determine its value, had never received any
training in how to do so, and his only knowledge on the value of
information was acquired during his preparation a week prior to
his testimony. See also United States v. Flesher, 73 M.J. 303,
315 (C.A.A.F. 2014)(sexual assault response coordinator's
practical experiences in the field of victim advocacy did not
necessarily qualify her to offer expert opinions on
counterintuitive behaviors). The military judge abused her
discretion when she ruled Mr. Lewis was not an expert in
information valuation, but effectively found him qualified to
testify as one nonetheless. This CI expert was completely

122

unqualified to testify about the value of information in the
WikiLeaks disclosures.

B. The subject matter of Mr. Lewis' testimony exceeded his
qualifications.

The qualifications of an expert dictate the limits of that
expert's testimony. Flesher, 73 M.J. at 315. An expert witness
may not offer opinions that "exceed[] the scope of the witness's
expertise." Id. (quoting United States v. Birdsall, 47 M.J. 404,
410 (C.A.A.F. 1998)). But that is exactly what Mr. Lewis did
here.

As set forth above, Mr. Lewis was wholly unqualified to
value information, a task he had never before attempted and
which had little to do with his actual experience in the CI
field. Since he was not so qualified, he necessarily exceeded
his qualifications by testifying as he did. Despite finding Mr.
Lewis was not an expert in the valuation of information, the
military judge allowed him to offer opinions on that very
subject. She therefore abused her discretion in admitting
opinion testimony beyond the scope of Mr. Lewis' expertise.

C. The information underlying Mr. Lewis' opinion was not of
the type a relevant expert would reasonably rely upon.

The third Houser factor, the basis for the expert
testimony, addresses the facts and data an expert may
appropriately rely upon in forming his opinion. Id. To reach his
conclusion on the value of the charged documents, Mr. Lewis

123

relied upon three sources of information: (1) the EEI

"snapshot," (2) the additional value data he obtained in
preparation for his testimony, and (3) his "memory" and
"experience." (R. at 9559-60, 9685, 9703, 9727-28, 9739
(redacted)).

Under M.R.E. 703, an expert's opinion may be based upon
experience and inadmissible evidence, including "documents
supplied by other experts." M.R.E. 703; Houser 36 M.J. at 399.
However, "the rule has a proviso as important as the rule's
statement regarding admissibility." Redman, 11 F.3d at 1179. An
expert opinion is admissible only if the expert has relied on
information "reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject."

M.R.E. 703.

This record provides no reason to believe an expert in the
relevant field would rely upon any of Mr. Lewis' three sources
of information. The subject of Mr. Lewis' opinion, and thus the
relevant field here, is "valuing U.S. government information."
Mr. Lewis' experience and memory alone did not give him the
ability to value information. (R. at 9553-54, 9560-64
(redacted)). He could not view a document and determine its
value without reference to additional data. (R. at 9553-54,
9564-65 (redacted))). Thus, for Mr. Lewis' valuation opinion to

124

be admissible, the additional data he referenced must be of the

type reasonably relied upon by an expert in valuing information.

Nothing in the record supports this proposition. The
government offered no evidence the additional data Mr. Lewis
relied upon has ever been used by experts to value information.
The fact that the government generally relies on this
information in other contexts does not mean it is reliable for
the altogether unique purpose of valuing classified information.

Mr. Lewis stated that he and the USDI rely upon this
information to brief Congress. (R. at 9574 (redacted)).

(Congress' specific interest in this information is discussed
further in the classified supplement to this brief at page 14.)
However, Congress did not rely on this data to actually value
information as Mr. Lewis did in this case. His briefings to
Congress consisted of summaries of "what was happening in that
quarter, both from an operational standpoint and from a
financial standpoint." (R. at 9479). These briefings included
information on "[t]he activities we're running against a foreign
adversary, the contact that we were having with that adversary,
and the things that were happening during that relationship."

(R. at 9479). There is no indication Mr. Lewis briefed Congress
or the USDI on how information was actually valued in any
particular operation. Quite the contrary, the record indicates

125

he did nothing more than summarize the progress of ongoing
operations.

The military judge's ruling, which is that the data was
reliable, failed to consider the purposes for which it had
actually been relied upon in the past. Impressed by the data's
inclusion in high-level briefings to Congress, she simply cited
the preparation of these briefings. (App. Ex. 591 at 3). Mr.
Lewis did not even know of any individuals holding themselves
out as such an expert. (R. at 9497). Therefore, the military
judge's ruling that the data was reliable for purposes of
valuation was clearly erroneous and Mr. Lewis' opinion was
inadmissible under M.R.E. 703.

D. Mr. Lewis' opinion was not relevant because it was not
reliable.

Relevant evidence is that which has "any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." M.R.E. 401. Unreliable expert
testimony is not relevant. See United States v. Dimberio, 56
M.J. 20, 27 (C.A.A.F. 2001).

While reliable evidence on the value of the information in
this case would be relevant, Mr. Lewis' testimony lacked
sufficient hallmarks of reliability because it failed to meet a

126

single Houser or Daubert factor. Thus, the military judge abused

her discretion in finding the testimony was relevant.

E. Mr. Lewis' valuation method failed the Daubert
reliability standard and lacked "alternative indicia of
reliability."

Daubert provides detailed guidance on the fourth and fifth
Houser prongs: relevance and reliability. Griffin, 50 M.J. at
284. The government, as the proponent of Mr. Lewis' testimony,
had to demonstrate the reliability of his opinion. Flesher, 73
M.J. at 316. Reliability requires that "an expert's opinion is
'connected to existing data' by more than the 'ipse dixit of the
expert.'" Id. (quoting General Elec. Co. v. Joiner, 522 U.S.

136, 146 (1997)). The government must demonstrate reliability by
relying on the four Daubert factors or on "alternative indicia
of reliability." Id.; United States v. Billings, 61 M.J. 163,

168 (C.A.A.F. 2005).

Neither standard of reliability was met here. First,
although the military judge cited Daubert in her ruling, her
conclusions of law meet none of the factors set forth in that
case. (App. Ex. 591). The Daubert framework is flexible and
subject to discretionary use by the military judge. Sanchez, 65

M.J. at 149. But having purported to rely upon that framework,
the military judge should have explained how Mr. Lewis'
testimony met any of the Daubert reliability factors. Mr. Lewis'
technique for valuing classified information had never been

127

tested, subjected to peer review or publication, had any
discernable error rate or standards controlling its operation,
nor had any acceptance whatsoever within the CI community.

Second, the military judge compounded this error by failing
to cite any "alternative indicia of reliability" that would
otherwise save Mr. Lewis' testimony. Instead, the military judge
apparently accepted the connection between Mr. Lewis' testimony
and the existing data simply because he had worked in the CI
field for decades. (App. Ex. 591 at 1-2). See Joiner, 522 U.S.
at 146 ("But nothing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence
that is connected to existing data only by the ipse dixit of the
expert."); Flesher, 73 M.J. at 314 ("We first question how an
individual can be characterized as an expert based simply on his
or her job title.")

Mr. Lewis had never valued information of any kind until he
was asked to do so at PFC Manning's court-martial. (R. at 9566,
9735 (redacted)). He demonstrated no particular or specialized
knowledge on any of the information within the charged
documents, such as diplomacy or military and detainee
operations. He viewed the charged documents for the first time a
week before he testified. (R. at 9557, 9736 (redacted)). He only
spent a few hours reviewing "very small" samples of documents to
arrive at purported values for entire sets of documents, yet was

128

not qualified to conduct statistical analysis and infer
propositions based on sample sizes. (R. at 9557, 9736
(redacted)).26 See, e.g., Louis Vuitton Malletier v. Dooney &
Bourke, Inc., 525 F. Supp. 2d 558, 642 (S.D.N.Y. 2007)(excluding

probability testimony of colorimetry expert because expertise in
colorimetry "does not establish his expertise as a
statistician").27

Mr. Lewis' testimony established he was aware that a market
for classified information generally exists, nothing more.
However, the specific market he was relying upon was not a
"thieves' market" in the sense that term has been traditionally
employed because PFC Manning never sold anything. See, e.g.,
Churder v. United States, 387 F.2d 825, 833 (8th Cir. 1968)(the
thieves' market is "the amount the goods may bring to the
thief"). Mr. Lewis had no knowledge of what an actual thief 26 27

26 A full discussion of his flawed statistical analysis requires
the use of classified data, and is thus detailed in the
classified supplement at pages 29-32.

27 See also Arista Records, LLC v. Lime Group, LLC, No. 06 CV
5936, 2011 U.S. Dist. LEXIS 47416, at *17-19 (S.D.N.Y. Apr. 29,
2011)(computer science professor unqualified to render opinions
dependent upon statistics); Kolokowski v. Crown Equip. Corp.,

No. 05-4257, 2009 U.S. Dist. LEXIS 77474, at *33-34 (D.N.J. Aug.

27, 2009)(expert's methodology "overly simplistic" and "far too
inferential" where no statistical analysis performed to support
inferences); Ortiz v. Yale Materials Handling Corp. , No. 03-
3657, 2005 U.S. Dist. LEXIS 18424, at *25 (D.N.J. Aug. 24,
2005)(expert's "simple review of numbers" without incorporation
of "any kind of statistical or mathematical analysis" rendered
ultimate opinion unreliable).

129

might receive in return for selling the specific information in

this case. In fact, he did not even know the term "thieves'
market." His entire testimony relied upon his conjecture as to
the amount an individual, masquerading as a thief, might receive
for pre-selected documents.28

Mr. Lewis' methodology for determining value in this
artificially-created thieves' market was not reliable, neutral,
or trustworthy. He would perform a keyword search in the charged
documents for certain types of information that had been sold in
the past. (R. at 9557, 9642 (redacted)). He would then simply
conclude that similar information in the charged documents must
have some value. (R. at 9561 (redacted)). But Mr. Lewis did not
compare the content of the actual information sold in the past
to the information in the charged documents to ensure this
purported similarity, despite his apparent ability to do so. (R.
at 9740-42 (redacted)). Nor did he account for numerous factors
that might alter the information's value at the time of the
sale, such as the information's availability in open source
reporting or elsewhere, or whether the passage of time had
altered its current value. (R. at 9642 (redacted)).29 Mr. Lewis
was essentially comparing apples to oranges.

28 Further description of the government's novel "thieves'
market" theory is found in the classified supplement at page 4.

29 Much of this information was available in open source reporting
and thus likely worthless to any prospective buyer. (R. at

130

Moreover, Mr. Lewis only considered past successful sales

of classified information, wholly ignoring those instances in
which an attempted transaction did not result in an actual sale
of information.30 (R. at 9616, 9619, 9661, 9734 (redacted)). It
is a basic economic principle that price in any market is
dependent upon demand.31 Thus, failed transactions in a
marketplace affect value just as much as successful ones. By
considering only half of the valuation equation, Mr. Lewis'
opinions on the value of the information were virtually
worthless. The military judge recognized as much when she
repeatedly asked government counsel to explain how reliable Mr.
Lewis' opinion could be when he failed to consider unsuccessful
transactions. (R. at 9608-17 (redacted)). Her ruling ultimately
recognized Mr. Lewis' data did not include information on
unsuccessful or failed CI operations, but she failed to explain

10054, 10136, Def. Exs. W, X). Much of the information was also
dated. (R. at 9806). This record contains no indication that Mr.
Lewis took any of these individualized considerations into
account when determining the information's value.

30 Information on unsuccessful transactions was apparently
available to Mr. Lewis, but he neither asked for it nor
considered it. (R. at 9626-27).

31 Demand is an "economic principle that describes a consumer’s
desire and willingness to pay a price for a specific good or
service. Holding all other factors constant, the price of a good
or service increases as its demand increases and vice versa."
Investopedia, http://www.investopedia.com/terms/d7demand.asp
(last visited Jan. 14, 2015).

131

how his method remained reliable despite this glaring
shortcoming. (R. at 9661 (redacted)).

CAAF's analysis in Billings is instructive here. Billings
was convicted of stealing an expensive Cartier watch. Billings,
61 M.J. at 165. At trial, the government called a jeweler as an
expert witness. Id. at 165. The jeweler examined photographs of
Billings wearing a watch and offered an opinion that the watch
in the photograph was solid gold. Id. at 166. On appeal, the
government argued the expert's experience enabled him to
distinguish solid from plate gold merely by looking at pictures.
Id. at 167.

The Court of Appeals for the Armed Forces held the military
judge abused his discretion in permitting the jeweler to offer
this opinion because the government met none of the four Daubert
reliability factors, "nor did it identify any alternative
indicia of reliability." Id. at 167-68. Although the jeweler was
qualified as an expert to testify about the characteristics of
Cartier watches, his opinion that Billings wore a solid gold
watch in a photograph was based on an unreliable technique and
was "the mere 'ipse dixit of the expert.'" Id. at 168 (quoting
Kumho Tire Co., 526 U.S. at 157).

Similarly, the military judge here did not cite a single
Daubert factor supporting the reliability of Mr. Lewis'
technique. The only alternative indicia of reliability the

132

government and military judge relied upon was Mr. Lewis' decades

of experience in the CI community. However, as in Billings, this
experience says nothing about the reliability of the technique
underlying Mr. Lewis' opinion. Like the jeweler's identification
of solid gold from a photograph, Mr. Lewis simply compared
information in the charged documents with summaries of
information previously sold in the past. This technique was
devoid of context and never before attempted, tested, reviewed,
standardized, or accepted in any community. His method of
valuing classified information was therefore unreliable and the
military judge erred in her application of the Daubert
framework.32

F. The probative value of Mr. Lewis' testimony was minimal
and outweighed by its prejudicial effect.

The military judge abused her discretion when she found the
probative value of Mr. Lewis' testimony was not substantially
outweighed by the danger of unfair prejudice. (App. Ex. 591).

Mr. Lewis' opinion was worthless to the factfinder because it
met none of the Daubert or Houser factors. Its prejudicial
effect was vast and unfair in comparison. The military judge
relied on this testimony to find PFC Manning guilty of every
Section 641 specification. (App. Ex. 625 at 5).

32 The classified supplement provides additional detail on the
shortcomings of Mr. Lewis' valuation method at pages 28-37.

133

2. The admission of Mr. Lewis' testimony materially prejudiced a
substantial right of PFC Manning.

Under Article 59(a), UCMJ, this court must test the
military judge's error in admitting this evidence for prejudice.
"The test for nonconstitutional evidentiary error is whether the
error had a substantial influence on the findings." United
States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001). The government
bears the burden of demonstrating the admission of Mr. Lewis'
testimony was harmless. United States v. Berry, 61 M.J. 91, 97-
98 (C.A.A.F. 2005).

Mr. Lewis' testimony is the only evidence in the record to
support the value element of Specifications 4, 6, and 12 of
Charge II. Thus, if this court finds the admission of this
evidence was error, this court should affirm only the lesser
included Section 641 offense of stealing, purloining, or
converting records or things of value belonging to the United
States with a value of $1,000 or less.

The military judge also relied upon Mr. Lewis' testimony to
find the value element was met in Specifications 8 and 16 of
Charge II. (App. Ex. 591 at 5). Given the significant weaknesses
of the government's alternative "cost price" method of valuation
for those specifications, addressed in Assignment of Error

III.B., this court should affirm only the lesser included
Section 641 offenses for Specifications 8 and 16 of Charge II.

134

The resulting significant change in sentencing exposure on these

offenses, from fifty years to ten, warrants a reassessment of
PFC Manning's sentence.

IV.

WHETHER 18 U.S.C.§ 793(e) VIOLATES THE DUE
PROCESS CLAUSE AND FIRST AMENDMENT OF THE
UNITED STATES CONSTITUTION?

Introduction

In Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge
II, PFC Manning was charged under clause 3 of Article 134 with
unauthorized possession and disclosure of classified information
in violation of 18 U.S.C. § 793(e)(Espionage Act). The military
judge convicted PFC Manning of all the Espionage Act offenses
except Specification 11. As discussed below, 18 U.S.C. § 793(e)
violates PFC Manning's due process and First Amendment rights.
Two of the Act's essential elements are unconstitutionally vague
and overbroad: (1) whether the classified records related to the

"national defense" and (2) whether PFC Manning had reason to
know the records could be used "to the injury of the United
States or to the advantage of any foreign nation."

Statement of Facts

Before trial the defense sought to dismiss the Espionage
Act specifications on constitutional grounds, specifically
vagueness and overbreadth. (App. Ex. 88). The military judge
denied the motion and issued draft instructions prior to PFC

135

Manning's election of a judge alone trial. (App. Exs. 138,

410a). The instruction defines the relevant terms:

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
computer files available to the general public.

Where the information 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
not made effort to guard such information, the
information itself does not relate to the
national security.

(App. Ex. 410a at 9). Regarding the second element, "injury to
the United States or to the advantage of a foreign country," the
draft instruction states the injury "must not be remote,
hypothetical, speculative, far-fetched, or fanciful." (App. Ex.
410a at 10).

136

As explained below, neither definition cures the Act's

defects—its failure to provide an accused fair warning of what
is or is not unlawful or its infringement on a broad swath of
protected speech—speech that goes to the very core of our
democratic system. The government will argue the Act concerns
national security, an important issue to be sure. But the
military's national security interests should not trump two of
our Constitution's most cherished rights, the right to due
process and the right of free speech.

Standard of Review

This court reviews de novo issues involving the
constitutionality of an act of Congress. See United States v.
Disney, 62 M.J. 46, 48 (C.A.A.F. 2005).

Law and Argument

1. 18 U.S.C.§ 793(e) is unconstitutionally vague.

"Due process requires 'fair notice' that an act is
forbidden and subject to criminal sanction." United States v.
Caporale, 73 M.J. 501, 504 (A.F. Ct. Crim. App. 2013)(quoting

United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003)). An

act must be sufficiently clear for "ordinary people [to]
understand what conduct is prohibited and in a manner that does
not encourage arbitrary and discriminatory enforcement." Id.
(quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983).

137

The military judge relied on United States v. Morison, 844

F.2d 1057 (4th Cir. 1988), United States v. Kim, 808 F. Supp. 2d
44 (D.D.C. 2011), and United States v. Rosen, 445 F. Supp. 2d

602 (E.D. Va. 2006), aff'd on other grounds, 557 F.3d 192 (4th

Cir. 2009), for the proposition that the statute is sufficiently
clear and provides fair warning. No military court has ever
decided this issue so these cases are at best only persuasive.

Nor do these cases address the concerns raised in Johnson
v. United States, 135 S. Ct. 2551 (2015), a case about whether

the residual clause in the Armed Career Criminal Act violates
due process. Writing for the court, Justice Antonin Scalia
expressed apprehension with a criminal statute that "asks
whether the crime 'involves conduct' that presents too much risk
of physical injury." Id. at 2557 (emphasis in original). Such
indeterminate language, he wrote, "denies fair notice to
defendants and invites arbitrary enforcement by judges." The
Espionage Act suffers from the same problem.

As to the phrase "relating to the national defense," the
military judge interpreted it "broadly" to cover virtually
anything having to do with the military. (App. Ex. 410a at 9).
Moreover, the disclosure of such information need only be
"potentially damaging." (App. Ex. 410a at 9). The definition of
the phrase "to the injury of the United States or to the
Advantage of any Foreign Nation" is even less clear. The

138

instruction merely states the injury must not be remote,
hypothetical, speculative, far-fetched, or fanciful." (App. Ex.
410a at 9). It does not even attempt to explain what constitutes
an injury.

This leaves too much "uncertainty of how to estimate the
risk posed by a crime." Johnson, 135 S. Ct. at 2557. Like the
statute at issue in Johnson, the Espionage Act is abstract and
written in a manner that gives no assurance that it relates to
"real world" conduct. Id. It therefore violates the due process
clause.

2. 18 U.S.C. 793(e) is unconstitutionally overbroad.

To establish a First Amendment violation, an accused bears

the burden of establishing the statute "prohibits a substantial

amount of protected speech." United States v. Taylor, 2016 CCA

LEXIS 108, *6-7 (A.F. Ct. Crim. App. 25 Feb. 2016)(quoting

United States v. Williams, 553 U.S. 285, 292 (2008)). The

Espionage Act unquestionably regulates speech concerning our

nation's national defense.

The First Amendment interest in informed
popular debate does not simply vanish at the
invocation of the words 'national security.'

National security is public security, not
government security from informed criticism.

No decisions are more serious than those
touching on peace and war; none are more
certain to affect every member of society.
Elections turn on the conduct of foreign
affairs and strategies of national defense, and

139

the dangers of secretive government have been
well documented.

United States v. Morison, 844 F.2d 1057, 1081 (4th Cir.
1988)(Wilkinson, J., concurring).

In Morison, on which the military judge relied, the court
found 18 U.S.C. § 793(e) constitutionally sufficient because the
district court reasonably narrowed its instructions to "confine
national defense to matters under the statute which "'directly
or may reasonably be connected with the defense of the United
States.'" Id. at 1076. In this case, however, the military judge
defined the term broadly to include anything having to do with
the "military" and "all activities of national preparedness."
(App. Ex. 410a). But Morison did not go this far. When a court
interprets a statute so broadly as to bring virtually any speech
within its sweep, then as a matter of law it is
unconstitutional. Williams, 553 U.S. at 292.

Given the vast record, we have no way of knowing whether
the military judge would have found PFC Manning guilty of all
the Espionage Act specifications had she correctly applied a
more limiting standard. Under these circumstances this court has
discretion to remand for a new trial or to affirm the lesser-
included offense to which PFC Manning pleaded guilty and
reassess the sentence. See United States v. Roa, 12 M.J. 210,

213 (C.M.A. 1982).

140

Between the two options, the most efficient way to

reconcile the error is to affirm the lesser-included offenses to
which PFC Manning pleaded guilty. This is more efficient and
will cause less disruption to the Army. Finally, the lesser-
included offenses capture the gravamen of the offenses. The
interests of justice are not served by retrying the merits of
the case—not when PFC Manning has pleaded guilty—and it is well
established that 18 U.S.C. § 793(e) is one of the least serious
Espionage Act offenses.33

Conclusion

For these reasons this court should reverse PFC Manning's
conviction of the 18 U.S.C. § 793(e) specifications and affirm
the lesser included offenses to which she pleaded guilty.

V.

WHETHER THE MILITARY JUDGE ABUSED HER
DISCRETION BY ADMITTING SENTENCING TESTIMONY
UNDER R.C.M. 1001(b)(4) NOT "DIRECTLY RELATING
TO OR RESULTING FROM THE OFFENSES."

Introduction

The military judge abused her discretion by admitting
sentencing evidence not "directly relating to or resulting from
the offenses of which" PFC Manning was found guilty. R.C.M.

33 Private First Class Manning also adopts the arguments in the
amicus brief from the American Civil Liberties Union.

141

1001(b)(4). This inadmissible sentencing evidence fell within
four categories:

1. Speculative testimony about "potential" effects that did
not in fact occur;

2. Vague testimony of general effects that fell short of the
requirement of a "specific harm" caused by PFC Manning;

3. Evidence of the government's efforts to mitigate
speculative future harm; and

4. Evidence of events that were not "caused" by PFC Manning's
offenses because the offenses were not the "but-for" cause
of those events.

The military judge often allowed the government to elicit this
improper testimony under the guise of providing an expert
foundation or "context." Even assuming the testimony was proper
aggravation, it was of little probative value and of substantial
prejudicial effect.

Standard of Review

A military judge's decision to admit aggravation evidence
at sentencing is reviewed for an abuse of discretion. United
States v. Ashby, 68 M.J. 108, 120 (C.A.A.F. 2009). Factfinding
is reviewed under a "clearly erroneous" standard and conclusions
of law are reviewed de novo. United States v. Ayala, 43 M.J.

296, 298 (C.A.A.F. 1995).

142

Law and Argument

During presentencing, the government may admit evidence of
aggravating circumstances "directly relating to or resulting
from the offenses of which the accused has been found guilty."
R.C.M. 1001(b)(4). However, PFC Manning "is not 'responsible for
a never-ending chain of causes and effects.'" United States v.
Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)(quoting United States v.
Witt, 21 M.J. 637, 640 n.3 (A.C.M.R. 1985)).

"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)(quoting

United States v. Gordon, 31 M.J. 30, 36 (C.M.A. 1990)). The
evidence must relate to the "specific harm caused by the
defendant." Payne v. Tennessee, 501 U.S. 808, 825 (1991); see
also United States v. James, 64 M.J. 514, 516 (C.G. Ct. Crim.
App. 2006). Aggravation evidence must also pass the M.R.E. 403
test, which requires balancing the probative value of the
evidence against its likely prejudicial impact. United States v.
Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007).

143

1. The military judge considered evidence of speculative harm
that did not in fact occur.

The military judge considered the speculative testimony of
three expert witnesses.34 These witnesses testified PFC Manning's
offenses "could cause damage" to national security in the
future. The military judge erroneously ruled this "risk of
damage or harm" was admissible under R.C.M. 1001(b)(4). (App.

Ex. 639 at 2).

A. Brigadier General Carr speculated adversaries "could" use the
CIDNE SIGACTS, but provided no indication they in fact did so.

At the time of PFC Manning's offenses, Brigadier General
(BG) Robert Carr was the Director of the Defense
Counterintelligence and HUMINT Center for the Defense
Intelligence Agency. (R. at 11249-50). The government called him
as a sentencing witness and he was qualified, over defense
objection, as an expert in "Department of Defense intelligence
operations and intelligence sharing within the United States
Government and with foreign parties and coalition forces." (R.
at 11315-16). After WikiLeaks released documents, BG Carr was
tasked to oversee the Information Review Task Force (IRTF). (R.
at 11321). The Secretary of Defense directed the formation of
the IRTF to conduct a review of the WikiLeaks releases and

34 This unclassified brief addresses the testimony of two of
these witnesses, Brigadier General Carr and Commander Aboul-
Enein. Mr. Kirchofer's speculative testimony is addressed in the
classified supplement to this brief at page 38.

144

assess any impact on national security. (App. Ex. 631; R. at
11323).

During his testimony at sentencing, BG Carr repeatedly
speculated adversaries "might" or "could" use documents released
by WikiLeaks. He never testified they in fact did so. For
example, he testified someone reading the CIDNE SIGACTS "could
capture an understanding and get more information about
insurgent activity." (R. at 11337). He also said, "If the
adversary had more clarity as to which people in the village
were collaborating with the U.S. forces, then there is a chance
those folks could be at greater risk."35 (R. at 11339).

When the defense objected to this line of questioning, the
trial counsel told the military judge he was laying a foundation
for the ultimate question of whether adversaries "did" use the
SIGACTS. (R. at 11339). The military judge overruled the
objection, apparently based on this assurance. (R. at 11339).
However, the trial counsel never asked the witness if
adversaries "did" use the released SIGACTS. In fact, throughout
its entire sentencing case, the government did not present
evidence of a single adversary's actual use of the SIGACTS, or

35 John Kirchofer of the Defense Intelligence Agency, who also
testified for the government at sentencing, echoed BG Carr's
speculation that "cooperating foreign nationals" could be
affected by the released SIGACTS. (R. at 11456).

145

any other released document, to retaliate against an individual

"collaborating with U.S. forces."36

Similarly, BG Carr testified the release of SIGACTS "would
have" caused a more severe impact if it were not for the
government's establishment of the IRTF. (R. at 11368). As an
example, he referenced U.S. forces sharing their understanding
of the released cables with the Iraqi government, and in turn
the Iraqi government not being surprised by the releases. (R. at
11369). Brigadier General Carr speculated the Iraqi government
might have reduced its cooperation if it had in fact been
surprised. (R. at 11369). The government thus effectively sought
to blame PFC Manning for an effect on the war in Iraq which, in
fact, never occurred.

In her ruling, the military judge reasoned speculative
testimony of this nature was proper aggravation because it was
evidence of "[r]isk of damage or harm to the national security."
(App. Ex. 639 at 2, 4). This court should review this conclusion
of law de novo. Ayala, 43 M.J. at 298. Though the military judge
cited no case law to support her conclusion, she likely accepted

36 Brigadier General Carr testified he was not aware of anyone
being killed as a result of WikiLeaks' release of the SIGACTS.

(R. at 11380). He mentioned a "Taliban killing" but was unable
to connect it to the releases. (R. at 11350). Thus, the military
judge ruled she would not consider it. (R. at 11351, 11408). He
also did not know whether any local Afghans or Iraqis were in
fact affected by the releases at the time of his testimony. (R.
at 11388).

146

the government's argument in its response to the defense motion

for appropriate relief under R.C.M. 1001(b)(4). (App. Ex. 630).
However, the government's argument that "potential harm is
proper aggravating evidence" relied on several problematic
sources. (App. Ex. 630 at 3) .

The government first relied on United States v. Jones, 44
M.J. 103 (C.A.A.F. 1996). (App. Ex. 630 at 3). Jones was HIV
positive and had protected sexual intercourse with the wife of
another Marine. Id. at 104. He was acquitted of aggravated
assault but convicted of adultery. Id. While announcing the
sentence, the military judge told Jones he found his "conduct to
be outrageous" because he disregarded "the health and safety" of
his "victim." Id. The Court of Appeals for the Armed Forces held
the military judge did not abuse his discretion in considering
Jones' medical condition at the time of the adultery offense
because it was "directly related to the offense," and
"subjecting the victim to the risk of a fatal disease more than
justifies the decision of the military judge to consider
evidence of appellant's condition." Id. at 104-05.

Three problems arise in citing this HIV case as support for
the proposition that "potential harm to national security" was
admissible in PFC Manning's case. First, the court based its
decision in Jones on the since-overruled case of United States
v. Joseph. Id. at 104. See United States v. Gutierrez, 74 M.J.

147

61, 68 (C.A.A.F. 2015)(expressly overruling Joseph and holding

aggravated assault conviction for protected and unprotected
vaginal sex was legally insufficient because HIV transmission
was not "likely" in either scenario). The validity of Jones is
thus in doubt.

Second, adopting Jones for the proposition that "potential
harm to national security" is admissible at sentencing invokes
concerns similar to the Gutierrez court's unease with the law's
adoption of "a sui generis standard in cases involving HIV
exposure." Gutierrez, 74 M.J. at 67. Should this court hold
"potential harm to national security" is admissible under R.C.M.
1001(b)(4), it would similarly be creating a category of
aggravation evidence sui generis to cases implicating national
security.

For example, at a presentencing proceeding for drunken
operation of a vehicle, the trial counsel could not offer
evidence that the accused "could have" caused an accident and
that accident "could have" injured someone. In an assault case,
the trial counsel could not offer expert testimony that the
accused "could have" caused a concussion. In these cases, the
government would be limited to evidence the accused in fact
caused a specific accident or injury. In a case involving the
release of classified information, the government should
similarly be limited to evidence the accused in fact injured

148

national security. To rule "risk of harm" is an appropriate
consideration at sentencing would risk subsuming the requirement
under R.C.M. 1001(b)(4) that sentencing evidence be "directly
relating to or resulting from the offenses," as risk by its
nature is nothing more than speculation that aggravation might
occur.

Third, even if the transmission of HIV during protected sex
was a valid risk of harm under modern legal and scientific
standards, it is at least a "specific" risk capable of a
qualitative and direct connection to an accused's actions. Here,
however, the government sought to blame PFC Manning for a
speculative and vague risk of harm to national security that
required the sentencing authority to infer a never-ending chain
of events. BG Carr's testimony that an adversary "could" use the
SIGACTS to get more information about U.S. forces requires the
sentencing authority to infer the existence of the unnamed
adversary, that this adversary would be interested in the
specific information released, that this information would in
fact enable the adversary to conduct more effective operations,
that the adversary will actually conduct those operations
successfully, and that those successful operations would in fact
injure the United States. Testimony that an adversary "might"
retaliate against collaborators requires the sentencing
authority to infer the adversary in fact desires to retaliate

149

against a specific collaborator, has the capability to do so,
and so on. But none of these inferences can be taken as givens,
especially in light of this record's dearth of evidence of an
adversary's actual use of the released documents.

In short, absent a requirement the evidence demonstrates an
actual, specific effect on national security, there is no end to
the list of evils that can blamed on an individual charged with
leaking classified information. See Hardison, 64 M.J. at 281 (in

the context of uncharged misconduct, holding aggravation
evidence "must be direct as the rule states, and closely related
in time, type, and/or often outcome, to the convicted crime.")

The government next relied on United States v. Bauer, an
unreported Air Force case relying on Jones. (App. Ex. 630 at 3-
4). There, an intelligence analyst was convicted of cocaine use.
United States v. Bauer, 1999 CCA LEXIS 117, at *2 (A.F. Ct.

Crim. App. 30 Apr. 1999). At sentencing, the military judge
instructed the members they could consider "the potential threat
to national security, if any, that may have resulted from"
Bauer's actions. Id. The Air Force court held the military
judge's instruction was not an abuse of discretion. Id.

Aside from the Air Force court's problematic reliance on
Jones, there are two important distinctions between Bauer and
PFC Manning's case. First, in Bauer the government offered this
"potential harm" testimony on rebuttal under R.C.M. 1001(d),

150

which does not contain R.C.M. 1001(b)(4)'s requirement that the

evidence be "directly related" to the offenses. Id. at *4. On
rebuttal, evidence need only be related to "matters presented by
the defense." R.C.M. 1001(d). In PFC Manning's case, the
government offered "potential harm" testimony during its primary
case in aggravation under R.C.M. 1001(b)(4).

Second, in Bauer the trial counsel specifically
"acknowledged there was no actual adverse impact on national
security in this case." Id. The military judge thus "wisely
added 'if any' to his instruction and thereby left it to the
court members to determine, based on the evidence, what impact
the appellant's drug use had on national security." Id. at *5.
Here, however, the government in fact asserted PFC Manning's
offenses caused damage in the form of "potential harm" and the
military judge in fact considered it as evidence in aggravation.
(App. Exs. 630 at 3-4; 639 at 2, 4; 658 at 3).

The government also cited R.C.M. 1004(c)(2) for the
proposition that the Drafters contemplated as an aggravating
circumstance "knowingly creating a grave risk of substantial
damage to the national security." (App. Ex. 630 at 3-4).

However, the Drafters expressly distinguished the aggravating
"factors" in R.C.M. 1004(c), unique to capital cases, from the
aggravating "circumstances" in R.C.M. 1001(b)(4).

151

The aggravating "factors" of R.C.M. 1004(c) "identify the

class of [criminals] eligible for the death penalty." United
States v. Witt, 73 M.J. 738, 821 n.42 (A.F. Ct. Crim. App.

2014). To find an aggravating "factor" in a capital case, the
members must vote and unanimously agree the factor applies
beyond a reasonable doubt. Id.; R.C.M. 1004(c). To find the
existence of an aggravating "circumstance" under R.C.M.
1001(b)(4) in a non-capital case, there is no requirement of
panel-member unanimity and no "beyond a reasonable doubt" burden
of proof. Given these important distinctions between death
penalty-qualifying aggravating "factors" and aggravating
"circumstances" in a non-capital case, reference to the former
to identify the limits of the latter is inappropriate.

Even if this court finds the "potential harm" testimony of
BG Carr was admissible under R.C.M. 1001(b)(4), the military
judge should have excluded it under M.R.E. 403. The prejudicial
impact of speculative testimony about possible future actions of
America's adversaries, without any evidence of actual harm, far
outweighs any probative value in determining an appropriate
sentence in this case.

B. Commander Yousef Aboul-Enein speculated Al Qaeda "could" use
the WikiLeaks disclosures.

Similar to BG Carr's testimony that adversaries "could" use
the released SIGACTS to improve operations against U.S. forces

152

or retaliate against collaborators, Commander (CDR) Yousef
Aboul-Enein speculated Al Qaeda "could" use the WikiLeaks
documents to recruit perpetrators of terrorist acts or compile
terrorist training manuals. (R. at 12331, 12333-39). Commander
Aboul-Enein was a subject matter expert on "violent Islamist
ideology" assigned to the Defense Intelligence Agency. (R. at
12321). The government called him at sentencing and qualified
him as an expert in "Al Qaeda terrorism and ideology." (R. at
12323). He testified generally about Al Qaeda operations and
described the organization's use of propaganda to influence the
population to support its desire for an Islamic social order.

(R. at 12325).

Commander Aboul-Enein referenced two instances in which Al
Qaeda used Wikileaks material for its propaganda purposes.

First, in January 2011, Al Qaeda in the Arabian Peninsula (AQAP)
published its "Winter 2010" issue of "Inspire Magazine." (Pros.
Ex. 182). In this issue, AQAP asked "mujahidin" to archive
"[a]nything useful from WikiLeaks." (Pros. Ex. 182; R. at
12337). The magazine also mentioned the names of U.S. and U.K.
government officials obtained from WikiLeaks. (R. at 12333).

Second, Al Qaeda referenced the leaks in a June 2011
propaganda video. (Pros. Ex. 182). This propaganda video
featured excerpts from the video "12 JUL 07 CZ ENGAGEMENT ZONE
30 GC Anyone.avi," which was the subject of Specification 2 of

153

Charge II. (Pros. Ex. 182). The video also featured members of

Al Qaeda referencing Department of State information from
WikiLeaks to support typical Al Qaeda propaganda, such as the
idea that Arab leaders collaborate with America. (Pros. Ex.

182).

According to CDR Aboul-Enein, the 2011 video and magazine
article are the only known uses by AQAP or Al Qaeda of
information disclosed by WikiLeaks. (R. at 12349-50, 12367).
Despite this admission, the military judge admitted over defense
objection additional speculative testimony about Al Qaeda that
had nothing to do with this video or magazine article, and thus
was not "directly related to or resulting from" PFC Manning's
offenses.

First, CDR Aboul-Enein referenced the "Little Rock
recruiting incident" and the "Major Hasan, Fort Hood shooting"
as examples of how the WikiLeaks disclosures might have an
effect on Al Qaeda recruitment. (R. at 12331). The military
judge allowed this testimony as "context evidence" because it
provided "examples of why narrative is important to Al Qaeda for
recruitment." (App. Ex. 658 at 1). This was clearly erroneous,
as the language of R.C.M. 1001(b)(4) does not allow the
government to provide historical "context" to buttress
speculation as to future events. The military judge's ruling
effectively allowed a government witness to suggest that another

154

mass shooting incident, like those that occurred in Little Rock

or at Fort Hood, might occur in the future due to PFC Manning's
offenses. Pure speculation that a terrorist act might occur in
the future is improper aggravation and is inadmissible by any
interpretation of the phrase "directly relating to or resulting
from."

Second, citing Al Qaeda's use of leaked U.S. and Soviet

military training manuals in the 1990s to create Al Qaeda's own

manuals, CDR Aboul-Enein testified over defense objection, "one

can only deduce from that that out of the thousands of SIGACTS

that has [sic] been leaked, that they could possibly potentially

basically deduce a pattern of behavior of U.S. combat forces."

(R. at 12337)(emphasis added). When asked how Al Qaeda would use

SIGACTS that are in English, CDR Aboul-Enein responded:

I'm speculating, but take Al Qaeda's

admonition in Inspire Magazine to help in
processing the voluminous amount of

information and, from that, if they see
SIGACTS that are of interest, they can begin
to piece together, like I said, a pattern of
behavior that shows how U.S. combat forces
operate in the field.

(R. at 12338)(emphasis added).

Aside from the self-admitted speculative nature of this
testimony, CDR Aboul-Enein's opinion as to potential uses of the
SIGACTS by Al Qaeda in the future is not proper aggravation
evidence under R.C.M. 1001(b)(4). An event that "could possibly

155

potentially basically" happen, by its very nature, did not in
fact happen and cannot be "directly related to or resulting
from" PFC Manning's offenses. CDR Aboul-Enein acknowledged his
entire opinion was based on a "hypothetical individual" who may
one day decide to use the WikiLeaks documents to create a
terrorist training product of some sort. (R. at 12354).

The military judge erroneously ruled this testimony "is
admissible expert testimony under M.R.E. 702." (App. Ex. 658 at
3). There is no authority for the proposition that otherwise
inadmissible aggravation evidence is permissible merely because
it is uttered by an expert.

Moreover, the military judge's ruling that the testimony
"is evidence of risk to the national security," even if based on
an acceptable conclusion of law, is clearly erroneous because it
is belied by the facts. Despite the unabated continuation of Al
Qaeda's propaganda machine from the time of PFC Manning's
offenses through the government's sentencing case three years
later, CDR Aboul-Enein was not aware of a single use of
WikiLeaks documents by Al Qaeda, AQAP, or any militant Islamist
organization except the single magazine and video in 2011. (R.

at 12349-53, 12361, 12367). There was simply no other evidence
of an actual, specific effect even three years after the
offenses. Thus, all of CDR Aboul-Enein's testimony beyond his
descriptions of the "Inspire Magazine" issue and the Al Qaeda

156

video was inadmissible and improperly considered by the military

judge in determining PFC Manning's sentence.37

Even if this court finds the testimony of CDR Aboul-Enein
was admissible under R.C.M. 1001(b)(4), the military judge
should have excluded it under M.R.E. 403. The prejudicial impact
of speculative testimony as to future actions of terrorist
groups far outweighs any probative value in determining an
appropriate sentence in this case.

2. The military judge considered evidence of insufficiently
specific harm, tenuously connected to PFC Manning's offenses.

A "foundational requirement" under R.C.M. 1001(b)(4) is
that the evidence relate to a "specific harm" caused by the
accused. James, 54 M.J. at 516 (citing Rust, 41 M.J. at 478).

The evidence also "needs a reasonable linkage between the
offense and its alleged effect." United States v. Barber, 27
M.J. 885, 887 (A.C.M.R. 1989). However, several of the harms

Ambassador (AMB) Patrick Kennedy laid at PFC Manning's feet were
insufficiently precise or connected to the offenses to meet
these requirements.38 Compounding this lack of specificity and

37 Commander Aboul-Enein's testimony regarding the Al Qaeda/AQAP
video and magazine was needlessly cumulative under M.R.E. 403
because it was essentially the same evidence contained within
Pros. Exs. 182 and 183. The military judge overruled a defense
objection to this cumulative testimony. (R. at 12328).

38 Elizabeth Dibble similarly testified about insufficiently
specific harms tenuously connected to the offenses. Her
testimony is addressed in the classified supplement at page 40.

157

nexus to the offenses, some of AMB Kennedy's alleged effects
were supported only by vague assertions based on hearsay or
overt speculation as to possible future catastrophes.

Ambassador Kennedy was the Under Secretary of State for
Management. (R. at 11865). At sentencing, the military judge
qualified him as an expert "in the field of management and
operations in the Department of State" and "in the use of
diplomatic reporting by U.S. policymakers." (R. at 11868).

Ambassador Kennedy testified about the diplomatic
importance of maintaining the "trust and confidence of our
interlocutors overseas." (R. at 11883). He explained that an
important part of a diplomat's job is to gain accurate
information on "opinions" and "feelings" of those outside the
U.S. government, including foreign diplomats and non-
governmental organizations. (R. at 11883). Over defense
objection, AMB Kennedy rendered his ultimate opinion that PFC
Manning's disclosures resulted in an information-sharing
"chilling effect" that harmed national security. (R. at 11902-
03).

The basis for this opinion was neither specific nor
reasonably linked to PFC Manning's offenses, instead depending
on a speculative chain of events. He believed "chilling effects"
occur because leaks of classified information result in a
"breach of confidence," which in turn results in a reticence by

158

foreign individuals to provide "full and frank opinions," which

in turn results in a diminished value of reporting from the
diplomatic field, which in turn impacts the ability of policy-
makers in Washington, D.C. to do a "better job in supporting our
national security." (R. at 11884, 11894-96, 11903-04).

Ambassador Kennedy also testified "some embassies," but not all,
reduced the amount of information in their diplomatic reporting
after the leaks out of fear the information would not be
protected. (R. at 11900). He said this reduction in reported
information was "deleterious" and "we think we're losing
something in that regard." (R. at 11900).

The military judge abused her discretion in finding AMB
Kennedy's opinion admissible under R.C.M. 1001(b)(4) because the
witness arrived at his ultimate opinion, that PFC Manning harmed
national security, through a "never-ending chain" of ill-defined
causes and effects. He blamed PFC Manning for a chilling effect
that occurred only after nameless foreign individuals "lost
confidence" and decided to cease sharing their "frank opinions,"
and "some embassies" included less information in their
reporting. These effects then decreased the value of reporting,
which in turn allegedly affected national security policy-making
in Washington, D.C. Notably, AMB Kennedy never discussed a
single diplomatic report affected by this reticence to share

159

information, nor a single national security policy affected by

this decreased reporting.

A long chain of events resulting in a nebulous harm to
national security policy-making is not a specific harm "directly
resulting from" the leaks. Even if such an effect could be
deemed "specific," it was necessarily the result of intervening,
independent decision-making by individuals within foreign
governments, the Department of State, and elsewhere in the U.S.
government. Thus, there was no reasonable linkage between the
offense and its alleged effect. Barber, 27 M.J. at 887; see also
United States v. Paroline, 134 S. Ct. 1710, 1719 (2014)("Every
event has many causes, however, and only some of them are
proximate, as the law uses that term. So to say that one event
was a proximate cause of another means that it was not just any
cause, but one with a sufficient connection to the result.")

Although the military judge ruled AMB Kennedy's opinion as
to the effect on policy-makers was speculative and inadmissible
under M.R.E. 403, she still considered this testimony "in
general" as relevant to the foundation for AMB Kennedy's expert
opinion that the leaks harmed national security. (App. Ex. 641
at 4). Moreover, it is impossible to accept his ultimate
proposition, that the diminished reporting harmed national
security, without considering the so-called "negative effect on
policy makers in Washington D.C." (App. Ex. 641 at 4). This

160

speculative effect on policy-making was the cornerstone of AMB

Kennedy's testimony, as it was the primary national-security
harm AMB Kennedy related to the diminished reporting. (R. at
11895, 11904).

Compounding the lack of specificity and chain-reactional
nature of these alleged effects, AMB Kennedy's opinion was based
on double hearsay instead of his personal experience or
observations. (R. at 11941). According to AMB Kennedy, foreign
officials told U.S. diplomats about their reticence to provide
information, then those diplomats reported this reticence to
him. (R. at 11941). The military judge asked AMB Kennedy how
frequently this reticence was reported. (R. at 11961). He
responded that a "relatively small number of people" have
reported it, his colleagues "have a sense" foreigners are not
engaging in frank discussion, and individuals "just feel[] that
they're not getting the kind of—kind of exchanges that they had
before . . . ." (R. at 11961). When asked to place a timeframe

on this chilling effect, AMB Kennedy responded that it started
in 2010, but he "cannot go to the depth of—it's impossible to
know what someone is not sharing with you . . . ." (R. at

11962).

Although an expert may consider hearsay as a basis for his
opinion under M.R.E. 703, the government's use of AMB Kennedy's
hearsay testimony only amplifies its lack of specificity. There

161

is nothing specific or direct about a "chilling effect" based on

the "feelings" and "senses" of a "small number of people" who
then relate those feelings and senses to someone else. This is
especially so in light of AMB Kennedy's admission that it is
impossible to even know if another country is not sharing
information.

The majority of AMB Kennedy's testimony revolved around the
concept of a vague chilling effect resulting from a long chain
of events, known to him only through a chain of hearsay
statements from a small number of people. The military judge
abused her discretion in admitting this evidence because it was
not a specific harm directly resulting from PFC Manning's
offenses and was inadmissible under R.C.M. 1001(b)(4). Even if
this court finds the testimony was admissible under R.C.M.
1001(b)(4), the military judge should have excluded it under
M.R.E. 403. The prejudicial impact of an Under Secretary of
State's vague and speculative testimony about harm to national
security far outweighs any probative value in determining an
appropriate sentence in this case.

3. The military judge considered evidence of the government's
efforts to mitigate speculative future harm.

Susan Swart was the Chief Information Officer for the
Department of State. (R. at 11713). The government called her at
sentencing as an expert in the field of "Department of State

162

Information systems." (R. at 11713). Ms. Swart generally
described the process by which diplomatic cables are transmitted
and the nature of the Net-Centric Diplomacy (NCD) database. (R.
at 11719-22).

After this basic overview, the trial counsel asked Ms.

Swart how her Information Resource Management (IRM) department
responded to WikiLeaks' releases of information. (R. at 11724).
Ms. Swart responded that IRM "started reviewing our systems . .

. tightening up our own security, republishing our guidance
about removable media . . . ." R. at 11724. The defense objected

under R.C.M. 1001(b)(4) and the military judge deferred her
ruling. (R. at 11724).

Ms. Swart continued to testify that IRM reviewed "access to
NCD, and how we provided access to NCD, and how we would go
about limiting that access." (R. at 11725). She discussed
further government efforts to prevent future leaks, such as the
implementation of training, reiterating the proper labeling of
cables, and studying "ways to provide access [to cables] through
other avenues." (R. at 11726). She then discussed the available
avenues of access to cables once the government decided to
remove the NCD database from the SIPR network, as well as the
feasibility of preventative measures such as a login and
password feature. (R. at 11728).

163

The majority of Ms. Swart's substantive testimony was

inadmissible under R.C.M. 1001(b)(4) because it was evidence of
acts undertaken by the government on its own volition which were
not "directly relating to or resulting from the offenses." While
efforts to mitigate any damage actually caused by PFC Manning
would be admissible, Ms. Swart's testimony instead concerned
efforts to prevent later similar misconduct. PFC Manning is not
responsible for the government's efforts to better protect its
systems in the future. The government's decision to implement
subsequent remedial measures was "an independent, intervening
event play[ing] the only important part in bringing about the
effect." United States v. Stapp, 60 M.J. 795 (Army Ct. Crim.

App. 2004).

The military judge expressed concern over this improper
testimony. She warned the government, "I have in your motion,
the United States maintains it would not present evidence of
subsequent remedial measures to prevent future criminal acts
similar to those which the accused has been convicted of, which
this is sounding very much like that to me." (R. at 11727).
Despite this initial concern, the military judge ultimately
ruled Ms. Swarts' testimony admissible under R.C.M. 1001(b)(4)
because it showed "the impact of the accused's misconduct on
interagency access to NCD." (App. Ex. 639 at 3). However, while
Ms. Swart did briefly mention the fact that the NCD database was

164

removed from the SIPR network, the majority of her testimony
focused on her department's efforts to mitigate future harm, as
well as efforts the State Department could have attempted to
prevent the leaks in the first place. (R. at 11724-30). None of
this testimony was proper under R.C.M. 1001(b)(4) and the
military judge erred in considering it.

4. The military judge considered evidence of events that were
not "directly relating to or resulting from" PFC Manning's
offenses because her offenses were not the "but-for" cause of
those events.

Attempting to further define the meaning of the phrase
"directly relating to or resulting from," this court has
required a showing that the offenses "contributed to" and played
"a material role in bringing about" the aggravating
circumstances. Witt, 21 M.J. at 641; Stapp, 60 M.J. at 800-01.

In Witt, this court expressly rejected any requirement of "but-
for" causation for aggravation evidence. Witt, 21 M.J. at 641
("Facts sufficient to constitute proximate cause are not
required; neither is a so-called "but for” test."); but see
Stapp, 60 M.J. at 801 n.4 ("[W]e do not share the reluctance of

our predecessors to apply the language of causation to our
interpretation of R.C.M. 1001, and we decline to follow Witt to
the extent that it rejects the use of such principles."). The
military judge apparently relied on these authorities in her
sentencing rulings where she applied a "substantial" or

165

"contributing" factor analysis. (See, e.g., App. Ex. 639 at 1,

para. 2).

However, the United States Supreme Court expressly rejected
this analysis in Burrage v. United States.39 134 S. Ct. 881, 890-
91 (2014). There, the Court explored the notion of causation in

the criminal law context and held "but-for" cause is "the
minimum requirement for a finding of causation." Id. at 888
(emphasis in original)(quoting Model Penal Code § 2.03,
Explanatory Note).

In Burrage the defendant distributed heroin to Banka. Id.
at 885. Prior to buying heroin from defendant, Banka crushed and
injected oxycodone pills. Id. Immediately after purchasing the
heroin, Banka cooked and injected some, then did so again later.
Id. As Banka's girlfriend went to sleep that night, she saw
Banka once again preparing to inject heroin. Id. When she awoke
a few hours later, Banka's girlfriend discovered Banka dead in
the bathroom. Id.

The defendant was charged with distribution pursuant to a
provision in the Federal Code that establishes a twenty-year
mandatory minimum sentence for distributing narcotics when 39

39 Although the military judge relied upon this court's precedent
in effect at the time of trial, she abused her discretion in
light of Burrage. This is so because the issue is "whether the
error is obvious at the time of appeal, not whether it was
obvious at the time of the court-martial." United States v.
Harcrow, 66 M.J. 154, 159 (C.A.A.F. 2008).

166

"death . . . resulted from the use" of the distributed

narcotics. Id. At trial, an expert testified Banka's cause of
death was "mixed drug intoxication" with heroin, oxycodone,
alprazolam, and clonazepam all playing a "contributing" role.

Id. at 886. The expert could not say whether Banka would have
lived had he not injected the heroin. Id. The trial court's
instruction allowed the government to meet the "death results
from" requirement through proof the distributed heroin was a
"contributing cause" of Banka's death. Id.

The Supreme Court held this "contributing cause"
instruction was erroneous. Id. at 892. In the Court's opinion,
written by Justice Scalia, the Court noted phrases such as
"results from," "because of," "based on," and similar phrases
encompass a "but-for" requirement. Id. at 889. The Court
determined "but-for" causality was the proper interpretation of
such phrases "given the need for clarity and certainty" in the
area of criminal law where the rule of lenity plays such a vital
role. Id. at 891. The Court expressly rejected the government's
proposed "substantial" or "contributing" factor analysis. Id.
("Taken literally, its 'contributing cause' test would treat as
a cause-in-fact every act or omission that makes a positive
incremental contribution, however small.") See also United
States v. Miller 767 F.3d 585, 592-93 (6th Cir. 2014)(hate crime
conviction, pursuant to Burrage, required "but-for" causation).

167

Under Burrage, the military judge's application of this

"contributing cause" test at PFC Manning's sentencing was
clearly erroneous. She ruled the offenses "must have contributed
to the effects" and "must play a material role in bringing about
the effects." (App. Ex. 639 at 1). The Burrage Court's reasoning
in rejecting this test and requiring "but-for" causation is
persuasive because the Court was interpreting the phrase at
issue here—whether the aggravating circumstances "resulted from"
PFC Manning's offenses. Under a "but-for" cause analysis, many
of the ills laid at PFC Manning's feet were inadmissible and
materially prejudiced her substantial rights. In several
instances, government witnesses admitted certain harms might
have occurred even absent PFC Manning's conduct, or at a minimum
they could not rule out the possibility.

James McCarl, Elizabeth Dibble, Colonel Julian Chesnutt,
Major General (MG) Michael Nagata, and MG Kenneth McKenzie
offered significant testimony of events not "directly relating
to or resulting from" PFC Manning's offenses because the
government failed to establish "but-for" causation. Since the
bulk of this testimony was offered during closed sessions, the
facts and argument related to this section are necessarily
briefed in the classified supplement at page 43.

168

5. The military judge's repeated consideration of inadmissible
aggravation evidence substantially influenced PFC Manning's
adjudged sentence.

This court must test the military judge's errors for
prejudice. Art. 59(a), UCMJ; United States v. Griggs, 61 M.J.
402, 410 (C.A.A.F. 2005). The test is whether the erroneous
admission of sentencing evidence "substantially influenced the
adjudged sentence." Id. Although military judges are presumed to
know the law and to consider only relevant material in assessing
a sentence, Hardison, 64 M.J. at 283-83, prejudice may arise if
the record demonstrates the military judge in fact considered
inadmissible sentencing evidence. See United States v. Williams,
ARMY 20130284, 2014 CCA LEXIS 665, at *11 (Army Ct. Crim. App.

28 Aug. 2014)(mem. op.), rev'd on other grounds, United States
v. Williams, 75 M.J. 129 (C.A.A.F. 2016).

Moreover, under the doctrine of cumulative error, "a number
of errors, no one perhaps sufficient to merit reversal, in
combination necessitate the disapproval of a finding." United
States v. Walters, 4 U.S.C.M.A. 617, 16 C.M.R. 191 (1954); see

also United States v. Hobbs, 42 C.M.R. 870 (A.C.M.R.
1970)(setting aside sentence for cumulative error); United
States v. Shamburger, ARMY 20030753, 2004 CCA LEXIS 454, at *12
(Army Ct. Crim. App. 20 Dec. 2004)(mem. op.)(reassessing
sentence for cumulative error).

169

Here, inadmissible aggravation evidence permeated the

government's entire sentencing case. The military judge
repeatedly misapplied R.C.M. 1001(b)(4), allowing witness after
witness to testify about events that were not "directly relating
to or resulting from" the offenses. Time and again, the military
judge expressed her intent to consider this evidence, overruling
defense objections under R.C.M. 1001(b)(4) and expressly stating
the evidence was admissible. (See App. Exs. 639, 641, 643, 650,
656, 658). The government relied extensively on this evidence
during its sentencing argument. (See, e.g., R. at 13114, 13117-
21).

Most of these witnesses were senior military and diplomatic
officials. General officers, directors of important government
organizations, and ambassadors laid immeasurable harms at the
feet of a young Private First Class for leaks of information
that even the Secretary of Defense believed were of minimal, if
any, impact to the security of the United States.40

40 Said then-Secretary of Defense Robert M. Gates in 2010, "Now,
I've heard the impact of these releases on our foreign policy
described as a meltdown, as a game-changer, and so on. I think
those descriptions are fairly significantly overwrought. The
fact is, governments deal with the United States because it's in
their interest . . . So other nations will continue to deal with

us. They will continue to work with us. We will continue to
share sensitive information with one another. Is this
embarrassing? Yes. Is it awkward? Yes. Consequences for U.S.

170

Conclusion

The cumulative effect of this testimony was highly
prejudicial, demonstrated by the military judge's harsh sentence
of thirty-five years confinement—a sentence unparalleled in the
history of espionage prosecutions (see Assignment of Error VI at
pages 183-85). It is not possible, nor is it just, to parse out
the admissible portions of these witness' testimony and find the
cumulative errors harmless.

VI.

WHETHER THIS COURT SHOULD EXERCISE ITS BROAD
POWERS TO READJUDGE A FAIR SENTENCE IN LIGHT
OF THE NUMEROUS APPELLATE ERRORS AND THE
OVERALL UNFAIRNESS OF THE ADJUDGED SENTENCE?

Introduction

The military justice system has many unique features, but
none are more important than the power of the Courts of Criminal
Appeals to reassess and reconsider the appropriateness of a
sentence de novo. This broad power mitigates to an extent the
problems that can arise in unusual or complex cases, where
sentences can be difficult to determine. This is exactly what
happened here.

foreign policy? I think fairly modest." (R. at 11939; Def. Ex.
YYY).

171

Private First Class Manning's case is quite possibly the

most misunderstood case in the history of the military justice
system. The government accused her of a serious offense-aiding
the enemy in violation of Article 104, UCMJ. The military judge
appropriately acquitted PFC Manning of the charge because there
was absolutely no evidence to support it, but the adjudged
sentence suggests the allegations of disloyalty played an
important role in the sentencing.

The government's prosecution strategy made it difficult for
the military judge to separate evidence that was directly
related to the disclosures from evidence that was not. Had the
correct sentencing standard been applied, and inadmissible
evidence not considered, the confinement term would have been
far less. Moreover, the government charged the case in a manner
that inflated the maximum punishment and distorted what PFC
Manning actually did. Together this placed the military judge in
an awful position. She had no way of knowing, under the
circumstances, what was a fair sentence except for the
recommendations of counsel. And as to that, all she did was
split the recommendations in the middle, which is how she
arrived at thirty-five years of confinement.

At its core, this case is about whether the information PFC
Manning disclosed, and how she did it, warrants a thirty-five
year term of confinement. She is not a spy. She did not

172

personally profit from the disclosures. Once she is released PFC

Manning is unlikely to ever hold a security clearance again. She
certainly will not serve in the military. The government did not
suffer any significant injury except for embarrassment and
administrative burden. Nor does the sentence properly account
for all of the mitigating evidence presented at trial.

Private First Class Manning was in her early twenties when
the disclosures occurred. She was battling depression, anxiety,
and gender dysphoria in a combat environment, all of which
affected her judgment and decision-making. She naively believed
at the time that disclosing the materials to a media outlet was
the only way to expose the culture of over-classification in the
military and save lives, but looking at it retrospectively, PFC
Manning admitted to the military judge that she should have
raised her concerns through other lawful channels. (R. at
13058)("In retrospect I should have worked more aggressively
inside the system.").

This explains why this court's sentencing role is so
important, and why it should reconsider and reassess the
sentence in this case. Private First Class Manning is not a
traitor. She simply made a mistake borne out of youth,
frustration, anxiety, unattended-to mental challenges, and the
Army's inattention to all of these.

173

Many people consider PFC Manning to be a whistleblower, and

that she did what was right in exposing government misconduct
and abuse. But for purposes of this sentencing, what matters
most is this—PFC Manning did not act with malice or disloyal
intentions; she took responsibility for her actions; and there
is no chance of recidivism. This was an isolated event. A
thirty-five year sentence is not required to generally deter
other Soldiers. Private First Class Manning admitted that she
disclosed classified information and should have known better.
For this, a ten-year sentence to confinement is appropriate.

Statement of Facts

The military judge sentenced PFC Manning to total
forfeiture of pay and allowances, reduction to the grade of E-1,
confinement for thirty-five years, and a dishonorable discharge.
All the charges and specifications arose from PFC Manning's
disclosure of classified information while she was assigned to
the S2 section of 2/10 MTN as an intelligence analyst. It was in
this role that PFC Manning obtained and disclosed classified
materials to WikiLeaks. The materials primarily consisted of
diplomatic cables and records of long-since-completed
operational missions.

Private First Class Manning pleaded guilty to disclosing
the materials, but pleaded not guilty to the most serious
offenses, including violations of Article 104, UCMJ, 18 U.S.C.

174

§§ 641, 793(e), and 1030(a)(1), and four specifications of

violating Article 92, UCMJ. The military judge found her not
guilty of violating Article 104, two of the Espionage Act
specifications, and one of the CFAA specifications, but guilty
of everything else.

At sentencing the government argued "there may not be a
Soldier in the history of the United States Army who displayed
such an extreme disregard for the judgment of the officers
appointed above him, and the orders of the President of the
United States." (R. at 13111). The government listed five
factors supporting a sixty-year confinement term, including that
PFC Manning disclosed "current information"; she disclosed the
information while on deployment; she searched for the materials
while on duty; she disclosed lots of information; and she
continued the misconduct after her clearance was taken away. (R.
at 13334-37). Also at sentencing the government offered evidence
that PFC Manning's disclosures had an effect on diplomatic
relations and military operations, although as discussed above,
much of this evidence should never have been considered.41

The government's main argument for the harsh sentence,
however, concerned the deterrent effect such sentence would have
on other Soldiers. The trial counsel asserted:

41 This allegation is discussed in Assignment of Error V and the
classified supplement.

175

This court must send a message to any Soldier
contemplating stealing classified

information. National security crimes that
undermine the entire system must be taken
seriously. Punish PFC Manning's actions, Your
Honor. Think about the volume of information
in this case: more than 700,000 records;

complete, and partial databases. Your sentence
can ensure we never see a number like this
again.

(R. at 13138). The trial counsel closed by stating, "if you
disclose information that aids our adversaries, if you betray
your country, you do not deserve the mercy of the law." (R. at
13138).

To rebut these arguments the defense offered substantial
mitigation evidence in support of a lesser sentence-ten years—
including evidence related to PFC Manning's mental condition at
the time she committed the offenses. For instance, CDR David
Moulton, a board-certified forensic psychologist assigned to the
Expeditionary Medical Force, Great Lakes, testified about his
assessment of PFC Manning's mental condition and its effect. (R.
12980). According to CDR Moulton, PFC Manning was suffering from
gender dysphoria, fetal alcohol syndrome42 and Asperger's, and

42 CDR Moulton, in response to a question from the military judge
regarding fetal alcohol syndrome, explained that PFC Manning's
intelligence is quite high but her ability to apply that
knowledge into logical and rational outcomes is lower than he
would expect given her intelligence level. (R. 13034). While
this may have been related to fetal alcohol syndrome, the long
period of solitary confinement also likely impacted his
assessment. See Amnesty International Amicus Brief concerning
Solitary Confinement.

176

also exhibited traits of abnormal personality disorder. (R.

12999). Private First Class Manning's primary diagnosis was

gender dysphoria, which he described as a condition where one

feels "they were born in the wrong gender," and they wish to

"physically morph their body or change their body into the

opposite gender." (R. at 13001). According to CDR Moulton the

condition can cause significant impairment.

It can be quite impairing and actually I have
had several cases at the University of Utah,
people presenting in-patient hospitalization
because of safety issues regarding suicidality
because of this. Gender is very much a core of
our identity as individuals. And when that is
off keel, can use a Navy kind of term, the
whole ship or your life has difficulty
establishing direction and tends to wander.

It can cause a lot of stress, significant
dysphoria, depression. Frequently in our
society oftentimes questions regarding gender
are associated with a lot of shame, guilt,
concern for stigmatization, retaliation, can
lead to a really questioning self-identity,
self-concept, self-worth those types of
things.

(R. at 13002).

This condition caused PFC Manning a great deal of stress,
particularly because she was in the military and was precluded
from talking openly about her feelings. (R. at 13011). It was
also exacerbated by PFC Manning's lack of social and emotional
support. (R. at 13012). The stress caused PFC Manning to act
out. (R. at 13017). She became distressed with the injustice she
discovered and believed that the disclosures would change how

177

the world viewed the wars in Afghanistan and Iraq. (R. at 13018-

19).

The Army's treatment of PFC Manning also contributed to her
impaired decision-making. Sergeant (SGT) Sheri Walsh worked with
PFC Manning in Iraq. She testified that some Soldiers were not
very nice to PFC Manning, while others ignored her. (R. at
12881). Sergeant Walsh described an incident where a Soldier
purposely pushed a door into PFC Manning, which dazed her. (R.
at 12882). The incident was not reported. (R. at 12882). This
was a microcosm of PFC Manning's experiences in Iraq.

The Army also knew of PFC Manning's emotional troubles but

ignored them because it needed intelligence analysts. Private

First Class Manning self-reported her mental and emotional

struggles associated with gender dysphoria. In an email dated 24

April 2010 to Master Sergeant (MSG) Paul Adkins, for example,

who was within her chain of command, PFC Manning forwarded a

picture of herself dressed as a woman and explained:

[t]his is my problem. I've had signs of it for
a very long time. Its caused problems within
my family. I thought a career in the military
would get rid of it. It's not something I seek
out for attention, and I've been trying very,
very hard to get rid of it by placing myself
in situations where it would be impossible.

But, it's not going away, its haunting me more
and more as I get older. Now, the consequences
of it are dire, at a time when its causing me
great pain in itself.

178

(Def. Ex. QQQ; R. at 12791). When questioned by the defense
about the email and why he did not immediately inform the chain
of command, MSG Adkins stated, "[b]ecause, one, I was getting
[her] therapy at the combat stress; two, we needed analysts to
assess the threat and I wanted to make sure that we had enough
Soldiers to conduct our mission." (R. 12802). Finally, in
addition to all of these mitigating circumstances, the MCBQ
subjected PFC Manning to isolation and other degrading and
inhumane conditions while PFC Manning was in pretrial
confinement, as discussed in Assignment of Error I.

Standard of Review

This court reviews sentence appropriateness de novo. See
United States v. Baier, 60 M.J. 382, 383-84 (C.A.A.F. 2005).

Law and Argument

This Court possesses broad authority to reassess and
reconsider sentences when warranted by the circumstances. See
United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F.
2013)(setting forth factors for reassessing sentences). There
are three reasons to reassess the sentence in this case. First,
the assignments of error, if granted, will dramatically change
the penalty landscape. Id. Second, because of the unusual nature
of this case it cannot easily be determined how the military
judge would have ruled without the errors. Id. Finally, the
military judge considered a significant amount of inadmissible

179

aggravation evidence, both because she misinterpreted the
sentencing rule and because she found PFC Manning guilty of
committing offenses for which there was insufficient evidence
Id.

With that said, the defense is under no illusion that
remanding the case to the military judge—whether on the merits,
sentencing, or both—will be an easy task. The trial required
substantial time and resources. The same would be true on
remand. This does not mean, however, that the default position
should be to affirm the military judge's rulings and sentence.
Rather, the fairest and most efficient way to correct the errors
below is for this court to reassess the sentence itself.

The Courts of Criminal Appeals routinely consider the
appropriateness of sentences. See United States v. Lacy, 50 M.J.
286, 288 (C.A.A.F. 1999). "Generally, sentence appropriateness

should be judged by individualized consideration of the
particular accused on the basis of the nature and seriousness of
the offense and the character of the offender." United States v.
Snelling, 14 M.J. 267, 268 (C.M.A. 1982)(internal citation and

quotations omitted). Logically, there is significant overlap
between the two concepts.

For this reason, the defense urges this court to reexamine
PFC Manning's sentence through both lenses—reconsideration and
appropriateness. When considered together, this court will come

180

to realize that a thirty-five year sentence to confinement
grossly exaggerates the severity of the offenses and grossly
undervalues the mitigating circumstances.

First, the adjudged sentence fails to take into
consideration PFC Manning's mental condition at the time she
committed the offenses. It is factually undisputed that PFC
Manning was suffering from gender dysphoria, a unique but severe
mental condition, for which she was not receiving any treatment.
PFC Manning could not have recognized the trauma associated with
this condition; in fact, the condition manifested itself by
causing PFC Manning to join the military to "fix" the condition.

(Defense Exhibit QQQ).

Second, the command failed to address her problems. For
instance, MSG Adkins knew PFC Manning probably should have had
her clearance revoked but chose not to do anything because the
intelligence section needed her as an analyst. (R. at 12798-
802). Private First Class Manning's condition was exacerbated by
mistreatment at the hands of fellow Soldiers. While it is true
PFC Manning bears responsibility for the disclosures, it is also
unquestionably the case that the Army's prioritization of
readiness allowed PFC Manning to slip through the cracks.

Third, PFC Manning did not intend to harm national security
or diplomatic interests. She truly believed that the disclosures
would save lives and support the military's mission. There is no

181

evidence whatsoever that she intended to aid the enemy, even
though this is how the prosecution characterized her conduct
throughout the trial and at sentencing.

Fourth, PFC Manning took responsibility for the disclosures
by pleading guilty without the protection of a pretrial
agreement. Had she truly wanted to avoid accountability, PFC
Manning could have required the government to prove its entire
case. While the government had the prerogative of seeking
additional convictions, it did not have to. Private First Class
Manning's guilty plea covered the extent of the crime. She
should be given credit for this.

Fifth, the government introduced mounds of inadmissible
aggravation evidence, clearly in an attempt to portray the crime
as more serious than it really was. The truth of the matter is
this—PFC Manning's disclosure caused more embarrassment than
operational or diplomatic harm. The sentencing rules require
more than speculative or theoretical damage or injury. But this
is exactly the type of evidence the government introduced
throughout its sentencing case.

Seventh, this court should take into consideration the
egregious pretrial confinement conditions PFC Manning
experienced while awaiting trial. See Assignment of Error I.

Sixth, the sentence is grossly disproportional to related
cases. Courts-martial involving the disclosure of classified

182

information are few and far between. In circumstances like this

it is reasonable to consider sentences for similar offenses.
United States v. Wacha, 55 M.J. 266 (C.A.A.F. 2001)(recognizing
the Courts of Criminal Appeals may exercise their discretion to
review related cases for uniformity).

In the pantheon of cases involving disclosures motivated by
whistleblowing, PFC Manning's is far and away the most severe
sentence ever adjudged.43 In the last five years alone, federal
prosecutors have prosecuted more whistleblowers than at any
time.44 In the last five years, three whistleblowers have been
prosecuted in federal courts. None have been sentenced more
harshly than PFC Manning.

1) Thomas Drake, an analyst at the National Security
Agency, pleaded guilty to a misdemeanor and was sentenced to a
year of probation for leaking classified information to the news
media for the purpose of exposing wrongful conduct by the
government.45

43 See Espionage and other Compromises of National Security
Information published by Defense Personnel Security Research
Center dated 2 November 2009, available at

http://www.dhra.mil/perserec/espionagecases/espionage_cases_augu
st2009.pdf (last accessed 9 May 2016).

44 See Charting Obama's Crackdown on National Security Leaks, Pro
Publica, Cora Currier, 30 July 2013, available at
https://www.propublica.org/special/sealing-loose-lips-charting-
obamas-crackdown-on-national-security-leaks (last accessed 9 May
2016

45 See No Jail Time in Trial over N.S.A. Leak, New York Times,
dated 15 July 2011, available at

183

2) Stephen Jin-Woo Kim, a former arms expert at the State

Department, was sentenced to thirteen months in federal prison
for leaking classified information to a Washington Post reporter
about North Korean military capabilities.46

3) Jeffrey Sterling, a former Central Intelligence Agency
(CIA) officer, was sentenced to three and a half years in
federal prison for leaking classified information to a New York
Times reporter about a secret operation to disrupt Iran's
nuclear capabilities. The federal sentencing guidelines had
called for a sentence of more than twenty years.47

Finally, two recent non-whistleblower classified
information cases prove PFC Manning's sentence is excessive. The
first involved a Navy intelligence specialist named Bryan
Martin.48 Martin pleaded guilty to charges he sold classified

http://www.nytimes.com/2011/07/16/us/16leak.html (last accessed
15 May 2016).

46 See Ex-State Department Adviser Stephen J. Kim Sentenced to 13
Months in Leak Case, Washington Post, dated 2 April 2014,
available at https://www.washingtonpost.com/world/national-
security/ex-state-dept-adviser-stephen-j-kim-sentenced-to-13-
months-in-leak-case/2014/04/02/f877be54-b9dd-11e3-96ae-
f2c36d2b1245_story.html (last accessed 15 May 2016).

47 See Ex-C.I.A. Officer Sentenced in Leak Case Tied to Times
Reporter, New York Times, 11 May 2016, available at
http://www.nytimes.com/2015/05/12/us/ex-cia-officer-sentenced-
in-leak-case-tied-to-times-reporter.html (last accessed 15 May

2016).

48 See Va. Beach-based sailor gets 34 years in espionage case,

The Virginian-Pilot, 21 May 2011, available at

http://pilotonline.com/news/military/va-beach-based-sailor-gets-
years-in-espionage-case/article_f20a1d79-0b29-5fa4-b097-
a7e4a77126e9.html (last accessed 17 May 2016).

184

information to a person he believed to be a spy. A military
judge sentenced him to thirty-four years confinement. By all
measures PFC Manning received the same sentence as a service-
member who wished to sell classified information for money.

The second case involves General David Petraeus.49 General
Petraeus is one of the most decorated Army generals in American
history and the former Director of the CIA. General Petraeus
pleaded guilty to disclosing highly classified information to
his former mistress and biographer. He apparently disclosed the
materials for sex. General Petraeus pleaded guilty to a
misdemeanor offense and was sentenced to two years of probation.

The trial counsel in PFC Manning's case claimed her crime
was worse than any Soldier in history. (R. 13111). He obviously
did not have the benefit of knowing about General Petraeus's
misdeeds when he made the statement.

Conclusion

The military justice system is often maligned for its
perceived unfairness. What these critics fail to realize is
Congress has vested in this court the power to right a wrong by
examining the appropriateness of sentences with a fresh set of
eyes. The defense understands the enormity of the trial, but now

49 See Petraeus sentenced: 2 years probation; $100K fine, CNN,

23 April 2015, available at

http://www.cnn.com/2015/04/23/politics/david-petraeus-
sentencing/ (last accessed 17 May 2016).

185

that time has passed it is clear the Army over-exaggerated the
crime. There are so many unique circumstances surrounding PFC
Manning's case that reducing her sentence will not have any
effect on military readiness or good order and discipline.
Reducing the sentence to ten-years is therefore appropriate.

Attorney at Law
Freedman Boyd Hollander
Goldberg Urias & Ward P.A.
20 First Plaza, Suite 700,
Albuquerque, NM 87102
505-842-9960
nh@fbdlaw.com

Attorney at Law
Freedman Boyd Hollander
Goldberg Urias & Ward P.A.
20 First Plaza, Suite 700,
Albuquerque, NM 87102
505-842-9960

vj wOfbdlaw.com

Lieutenant Colonel, Judge Advocate
Chief,

Capital and Complex Litigation
Defense Appellate Division
U.S. Army Legal Services Agency

J. DAVID HAMMOND
Captain, Judge Advocate
Appellate Defense Counsel
Defense Appellate Division
U.S. Army Legal Services

Agency

186

Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.

1982), Private First Class (PFC) Chelsea E. Manning, through
counsel, personally requests that this court consider the
following:

1. Violation of Right to Speedy Trial.

"Article 10, [Uniform Code of Military Justice (UMCJ)], is
a fundamental, substantial, personal right, and is a statutory
protection intended to prevent soldiers from being put in the
clink and held there for weeks, sometimes months, before being

brought to trial." United States v. Cooley, ____ M.J.__, 2016

CAAF LEXIS 351, *26 (C.A.A.F. 6 May 2016). Contrary to the
requirements of Article 10, it took the government over three
years to bring PFC Manning to trial after her arrest and
confinement. Much of the delay was caused by the government's
needless decision to obtain classification reviews before the
Article 32. As discussed below, the twenty-month delay in
convening the Article 32 for purposes of obtaining the
classification reviews violated PFC Manning's speedy trial
rights and is itself a sufficient reason to reverse the
conviction and dismiss all the charges and specifications.

The defense filed a speedy trial motion on several grounds,
one of which was that the government violated Article 10 by
delaying the Article 32 investigation to obtain classification

reviews from the agencies allegedly affected by the disclosures.

(App. Ex. 326). PFC Manning sat in pretrial confinement for
about twenty months before the Article 32 began. (App. Ex. 354
at 2). The government argued the classification reviews were
necessary for the Article 32 officer to consider the extent to
which the hearing should be closed and as proof of the preferred
charges. (App. Ex. 494 at 20-21).

Importantly, the government did not formally request the
classification reviews until 18 March 2011, almost a year after
PFC Manning was first detained. (App. Ex. 494 at 21). The
military judge found the government made "informal" requests for
classification reviews, but the requests appear not to have been
made in writing and the government offered little evidence of
what these "informal" requests entailed. (App. Ex. 494 at 21).
The military judge, in a conclusory fashion, determined the
government acted diligently in obtaining the classification
reviews, but even her ruling points out that the government did
not formally request the reviews until several months after PFC
Manning's pretrial confinement began. (App. Ex. 494 at 21).

If this court rules in the government's favor, it will
essentially eviscerate Article 10 in any case involving
classified information. The government did not submit formal
requests for classification reviews for nearly ten months. It
then took approximately six months to complete the
classification reviews and produce them to the defense. The

2

evidence with respect to the informal requests is at best murky

and inconclusive. It certainly does not establish diligence
within the meaning of Article 10. Finally, the government could
have moved forward with the Article 32 without the
classification reviews. The government cannot hide behind the
shield of classification in order to skirt Article 10. For these
reasons the conviction should be reversed and all the charges
and specifications dismissed with prejudice.

This court reviews de novo whether an appellant's speedy
trial rights were violated, but it is bound by the military
judge's factual findings unless they are clearly erroneous. See
United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007).

"An Article 10 violation rests in the failure of the
[g]overnment to proceed with reasonable diligence. A conclusion
of unreasonable diligence may arise from a number of different
causes and need not rise to the level of gross neglect to
support a violation." United States v. Mizgala, 61 M.J. 122, 129
(C.A.A.F. 2005). This court examines four factors under Article
10: (1) the length of delay; (2) the reason for delay; (3)

whether appellant made a demand for speedy trial; and (4)
prejudice to the appellant. See Cossio, 64 M.J. at 256. "[I]t
is the [government's responsibility to provide evidence showing
the actions necessitated and executed in a particular case
justified delay when an accused was in pretrial confinement."

3

Cooley,

M.J.

2016 CAAF LEXIS 351, at *28.

The government did not meet its burden of establishing
delay was necessary to complete the classification reviews. The
government offered two reasons for the delay—the complexity of
the case and the need to obtain the reviews before the Article

32. Neither was sufficient to keep PFC Manning detained for
nearly twenty months before convening the Article 32.

"By definition, an Article 32 investigation is designed to
gather evidence upon which a recommendation can be made to
enable a convening authority to decide whether there is
sufficient evidence to warrant referral of charges to trial."
United States v. Bramel, 29 M.J. 958, 967 (A.C.M.R. 1990),

aff'd, (C.M.A. Aug. 21, 1990) (emphasis added). However, "[a]n

Article 32 investigation does not, in fact, require that a
recommendation by the investigating officer that a charge be
referred to trial be predicated upon evidence sufficient to
establish guilt beyond a reasonable doubt.” United States v.

Payne, 3 M.J. 354, 359 (C.M.A. 1977) (emphasis added). Here the
government essentially argues it may take as long as needed to
obtain classification reviews for an Article 32 involving
classified information. But this is not the law when it comes to
speedy trial.

For instance, in United States v. Longhofer, 29 M.J. 22
(C.M.A. 1995), the court declined to adopt a per se rule that

4

delay was excludable for the time it took to get a counsel a
security clearance. Similarly, in United States v. Duncan, 34
M.J. 1232, 1243 (C.M.A. 1989), the court rejected a per se rule
that delay was excludable to ensure classified information was
not improperly disclosed at an Article 32 hearing.

Taken together, these cases establish that an Article 32
cannot be indefinitely delayed merely because the substantive
offenses involve classified information. The government had
plenty of options to conduct the Article 32 without the
classification reviews. Moreover, the military rules provide
sufficient safeguards to protect classified information in the
context of an Article 32. See Military Rule of Evidence (M.R.E.)
505. Finally, the government did not meet its burden of
establishing the delay was necessary. The undisputed evidence
shows prosecutors waited several months to formally request
classification reviews, and then it took many more months for
the classification reviews to be completed and produced to the
defense. The government did not offer a single reason why it
waited so long to formally ask for the classification reviews.
This is inexcusable given the well-established right to a speedy
trial.

For the reasons stated above, the charges and
specifications should be dismissed because the government took
too long to ask for and obtain the classification reviews. The

5

reviews were not needed for the Article 32, and in any event,
the government had a choice to make—either keep PFC Manning in
confinement and proceed to the Article 32 with diligence, or
release PFC Manning from confinement and take what time it
needed to perfect its case before the Article 32. The law does
not support what the government did here, which was to hold PFC
Manning in confinement indefinitely while moving at a snails
pace to obtain classification reviews. Therefore, all charges
and specifications should be dismissed with prejudice.

2. Discovery violations.

Military courts recognize "a much more direct and generally
broader means of discovery by an accused than is normally
available to him in civilian courts.” United States v. Reece, 25
M.J. 93,94 (C.M.A. 1987). Regarding discovery, "military law has

been preeminent, zealously guaranteeing to the accused the right
to be effectively represented by counsel through affording every
opportunity to prepare his case by openly disclosing the
Government’s evidence." United States v. Enloe, 35 C.M.R. 228,
230 (C.M.A. 1965). The only restrictions placed upon liberal
defense discovery are that the information requested must be
relevant and necessary to the subject of the inquiry, and the
request must be reasonable. Reece, 25 M.J. at 95. See also
United States v. Luke, 69 M.J. 309, 319 (C.A.A.F. 2011).

6

Despite the liberal mandate for discovery, the government

either purposefully or negligently avoided providing necessary
discovery to the defense. For the first two years of the case,
the government represented that it had been diligently searching
for Brady material. Unfortunately, the government did not
understand what Brady material was. It believed that Brady was
the standard set by the United States Supreme Court, when it was
not. As military courts have recognized over and over, military
rules and ethical obligations mandate much broader Brady
disclosure than the Supreme Court’s actual 5O-year old decision
in Brady v. Maryland, 373 U.S. 83 (1963).

In addition to deliberately withholding necessary discovery
and Brady material, the government also deliberately withheld
discoverable information under Rule for Courts-Martial (R.C.M.)
701(a)(2)(A) because it thought that R.C.M. 703 was the correct
discovery rule. The government’s abdication of its basic
discovery responsibilities was unconscionable and irreparably
prejudicial to PFC Manning’s case. Although the military judge
determined that the government failed to understand what its
discovery obligations were, the military judge did not take any
curative action based upon this failure. (App. Ex. 36 at 8)("The
classified information privilege under MRE 505 does not negate
the Government’s duty to disclose information favorable to the
defense and material to punishment under Brady.”); (App. Ex. 68

7

at 2)("The Court finds that the Government believed RCM 701 did

not govern disclosure of classified information for discovery
where no privilege has been invoked under MRE 505. This was an
incorrect belief."). Instead, the military judge simply chose to
ignore the government’s negligent or willful failure to provide
necessary discovery to the Defense. Due to the egregious
discovery and Brady violations, the military judge should have
dismissed all charges with prejudice. (App. Exs. 8, 26, 36, 48,
50, 53, 68, 93, 96, 98, 99, l0l, 128, l3 1, 135, 142, 146, 147,
152, 153, 17l, 175, 176, 202, 222, 243, 273, 274, and 317).

3. Unreasonable Multiplication of Charges (UMC).

The Manual for Courts-Martial (MCM) directs that ”[w]hat is
substantially one transaction should not be made the basis for
an unreasonable multiplication of charges against one person."
RCM 307(c)(4). ”[T]he prohibition against unreasonable
multiplication of charges addresses those features of military
law that increase the potential for overreaching in the
exercise of prosecutorial discretion." United States v. Quiroz,
55 M.J. 334, 337 (C.A.A.F. 2001).

The government unreasonably multiplied the charges against
PFC Manning by splitting one transaction into two
specifications: one alleging a violation of 18 U.S.C. § 641 and
one alleging a violation of 18 U.S.C. § 793(e). The conduct
underlying a particular Section 641 violation should not have

8

been artificially separated from the conduct underlying the
corresponding Section 793(e) violation. In maintaining the
artificial distinction created by the government, the military
judge allowed the Government to exaggerate PFC Manning’s
criminality and unreasonably increase her punitive exposure.

The government also unreasonably multiplied the charges
against PFC Manning in another instance by splitting one
transaction into two separate specifications: one alleging a
violation of Section 641 and one alleging a violation of Section
1030(a)(1). Specifications 12 and 13 of Charge II alleged that
PFC Manning violated Sections 641 and 1030(a)(1), respectively,
when she stole, purloined, or knowingly converted the Department
of State Net-Centric Diplomacy database and then disclosed
certain classified records on that database to a person not
entitled to receive those records. These specifications dealt
with the same transaction—PFC Manning’s alleged exceeding
authorized access to obtain the Department of State Net-Centric
Diplomacy database records and her subsequent disclosure of
them. As such, the government again was permitted by the
military judge to exaggerate PFC Manning’s criminality and
unreasonable increase her punitive exposure.

The military judge erred when she determined that the 18
U.S.C. § 641, l8 U.S.C. § 793(e) and l8 U.S.C. § 1030(a)(1)
specifications encompassed distinctly separate criminal acts.

9

(App. Ex. 78 at 4-7). The military judge also erred when she
determined that the number of charges and specifications did not
misrepresent or exaggerate PFC Manning’s criminality. (App. Ex.
78 at 4-7). The military judge should have granted the defense
motion to dismiss based on unreasonable multiplication of
charges. (App. Ex. 57, 78).

Private First Class Manning respectfully requests
appropriate relief.

Chelsea E. Manning

10

CERTIFICATE OF SERVICE

United States v. Manning
Army No. 20130739

I certify that a copy of the Brief on Behalf of Appellant
and the classified supplement to the Brief was delivered to the
Army Court of Criminal Appeals on 18 May 2016. Upon approval of
the court, undersigned counsel will deliver the Brief to the
Government Appellate Division.

CPT, JA

Appellate Defense Counsel

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