02 March 2011

Article 104 Offense

This is the Military Judges' Benchbook instruction on the elements of the offense of Article 104. 

AIDING THE ENEMY—GIVING INTELLIGENCE TO THE ENEMY (ARTICLE 104)

ELEMENTS:

(1) That (state the time and place alleged), the accused, without proper authority, knowingly gave intelligence information to (a) certain person(s), namely: (state the name or description of the enemy alleged to have received the intelligence information);

(2) That the accused did so by (state the manner alleged);

(3) That (state the name or description of the enemy alleged to have received the intelligence information) was an enemy; and

(4) That this intelligence information was true, at least in part.

d. DEFINITIONS AND OTHER INSTRUCTIONS:

“Intelligence” means any helpful information, given to and received by the enemy, which is true, at least in part.

“Enemy” includes (not only) organized opposing forces in time of war, (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). (“Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)

16 comments:

  1. How ever these files got released to the world I thank the person or persons who saw fit to allow us to glimpse what both this world and our country do, and in regard to the latter, sometimes in our name.

    Seems our country no longer plays by many rules even though most were written long ago. Frankly whoever released this stuff should get the Medal of Freedom, considering the cast of characters they usually give them to to buy their silence. This information allowed many countries to free themselves from oppression and allowed others to see the war crimes committed against them or by them. Helicopter gunship video left no doubt as to what occurred to mam in Iraq and I'm sure many other conflicts.


    If Manning had anything to do with it treat him as a hero and our system of conquest for the corporations at any cost the criminal. No one should have to die just so Kentucky Fried Chicken or Coke can sell more abroad, and others can profiteer off of the war them self.

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  2. The actions of the US Government in this prosecution is of grave concern to decent people throughout the world. This case has highlighted the dangers of the extraordinary extradition rights the US has in the UK, and other countries in Europe. If the US Government is prepared to violate laws and take away the freedom of speech of its own citizens, how can it respect the freedoms of others?

    This case and the wider attacks on Wikileaks demonstrate that the US Government appears to believe it can disregard or redefine laws to pursue people in a manner that is echos that in Nazi Germany in the late 1930s.
    In the context of those extradition agreements, none of us are safe.

    Tomorrow morning I will go to our local Members of Parliament to lobby for those extradition agreements to be suspended, giving this case as an example of why change is required.

    We all value our freedom. We cannot let a state that is sacrificing those freedoms for commercial or political gain, rob us all of what we hold most dear.

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  3. Humanity will continue to suffer at the hand of one form of tyranny or another. In the west we have the choice, we get to freely elect who represents our tyrannical leaders, the corporate multi nationals & the military industrial complex rule with no regard for the citizens of any country including their own, they are the law makers, the judges & the enforcers. We the masses are nothing more than cannon fodder & a means to an ever increasing profit margin.
    Assange is a dead man, his fate is sealed & no one can stop the forces of the American military
    industrial complex & its puppets in the senate.
    The answers for the very reason that the US is so despised lay within the cablegate documents, the protection of American interests comes before the lives of non US citizens. You put the dollar before human lives & this is what happens.

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  4. Bradley Manning should be receiving a Nobel Peace Prize, not a death sentence.

    Imagine the condemnation the world would be heaping upon any other nation for threatening to put someone to death for truth-telling.

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  5. Everything in our government should be public knowledge, isn't that how it is supposed to be? Because "We the people" are the government.
    Manning is a patriot, and like all true patriots usually pay the ultimate sacrifice. We went wrong when we stopped caring about our nation. We have become more concerned about the next iPod release and not whats going on around us. Mr. Coombs, you need to do every single thing you can to help your fellow soldier get squared away. Manning thank you for waking up the world. This is so sad it's unreal, just unreal.

    If anybody is to blame it is me, it is you, it is the nation as a whole. That we could sit back and force someone who cares to kick us in the head while we were sleeping to get us to wake up and see the flood of BS that is around us.

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  6. And how is forwarding document and video files to Wikileaks giving aid and comfort to the enemy??? How is Julian Assange, an Australian citizen, part and parcel with the Pentagon's stated enemies??? This Article 104 Charge of 'Treason' is utterly ridiculous and has put all people everywhere on notice that the United States of America are the Emeny of All Humanity. THE ENEMY OF ALL HUMANITY!!!

    The US Government really, really needs to go bankrupt and disappear utterly, taking the Military-Industrial Complex with it, before it has a chance to launch World War III in an attempt to assert its will upon the world. Otherwise, humanity will become extinct. Revolution is not feasible.

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  7. Love these comments.

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  8. AIDING THE ENEMY—GIVING INTELLIGENCE TO THE ENEMY (ARTICLE 104) only applies if one bends the law by arbitrarily labeling bodies like Wikileaks "the enemy" or an "hostile body". Wondering if the DoD would've also added this charge if the informations were given to the New York Times instead to Wilikeaks. Well, I highly doubt it and we all know that!

    @ anonymous 6:11 PM - I couldn't agree more!

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  9. Lies to the "bitter end" oh I "crack" myself up!

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  10. Addition, I would like to know how "enemy" is defined acc to the charge (just in case they do not refer to Wikileaks). If it just refers to some so-called insurgents or something, it's just baseless assumptions and thus far-fetched and should never stand up in court, at least normally. They are just way too vague!

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  11. Assuming Manning did this then his immediate COC should be up next to him for deriliction of duty and contributing.

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  12. Aiding the enemy - the enemy being citizen awareness?

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  13. The United States is turning into the enemy by the looks of it. Maybe they should lock up all of the members of the current US government for providing comfort to the enemy, because they are propping up the enemy financially. Bradley Manning is in solitary for telling the truth. The video evidence shows proof of a crime 'a massacre' by some in the Military, why isn't that pilot in solitary?

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  14. AIDING THE ENEMY—GIVING INTELLIGENCE TO THE ENEMY (ARTICLE 104)

    ELEMENTS:

    (1) That … the accused, without proper authority, knowingly gave intelligence information to (a) certain person(s), namely: (state the name or description of the enemy alleged to have received the intelligence information); ...

    (3) That (state the name or description of the enemy alleged to have received the intelligence information) was an enemy…
    =================================================================
    Case 1: “knowingly” does not extend to Manning’s knowledge that the person he was giving the information to was an enemy, just that Manning knowingly gave information to “certain person(s)” and that/those “certain person(s)” turned out to have “enemy” status unbeknownst to Manning

    Case 1 seems to be contradicted by the requirement in the Article, section (1) to state the name or description of the enemy alleged to have received the information, not just the person alleged to have received it, so that it seems that Manning would have had to know that the recipient is an enemy, which is Case 2:

    Case 2: “knowingly” extends to Manning’s knowledge that the person(s) he was giving the information to had “enemy” status pursuant to some Act or Resolution of Congress.

    For this case, the following questions arise:

    1. As to the “enemy” status of recipient(s): What if Manning gave the information to either a citizen of the United States, or a subject of the British Commonwealth, or a citizen of the European Union, and knew the persons had these respective citizenships?

    None of these countries or groups of countries are at war with the US, so none of their citizens can be defined as enemies, and thus if Manning gave the information by some means or other to a US citizen (for example), he would not be guilty of a violation of this article.

    Same case if he sent a box of CD-ROMs to Julian Assange, and knew he was sending them to Julian Assange. Assange is an Australian citizen, and since Australia is not at war with the US, Assange is not an enemy.

    The same goes for the other people so far named as part of Wikileaks, as all are either subjects of a British Commonwealth country or citizens of an European Union country, neither of which are at war with the US, and thus none of whom are enemies.

    The only country, since 2008, currently named as an enemy of the US is Cuba (Trading With the Enemy Act of 1917, amended 2008). The governments of Iraq and Afghanistan were installed by the US occupation forces, and neither the Iraqi nor Afghani armed forces are at war with US forces. al-Quaeda is an extraterritorial force, seemingly mainly funded by Saudi Arabia and composed of Saudi nationals including Osama bin Laden. There has been no Congressional declaration of war against al-Quaeda, and the US is currently not at war with Saudi Arabia. There is no evidence that any Cuban citizen is a member of Wikileaks.

    2. This Article does not cover indirect transmission of information, as it requires certain person(s) as recipients and requires them to be named or described, and requires that they have “enemy” status, and that Manning has knowledge of this status as it applies to these certain persons (“knowingly gave … to certain person(s)”).

    The alternatives to “knowingly” are recklessly and negligently, which require a lesser degrees of intent or no intent at all to be satisfied, which could apply to a more general rule, but the word “certain” would also have to be omitted. In this case, the reckless or negligent broadcast of information to unnamed persons, some of whom might be enemies, could be prohibited, but this is not how the Article is drafted.
    ==================================
    I haven’t seen any fact pattern presented so far under which Manning could be found guilty of violating Article 104 - but then I don’t have all the facts, either...

    It's a bloody pain posting to this site as anything other than "anonymous" btw.

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  15. As the USA is its own worst enemy when it comes to information management - this assisting the enemy is correct.
    The people who withheld vital information from the American public are the ones to blame - not the person who gave it back!!

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  16. Does anyone know what defense Manning's lawyers are offering?

    IMO, he has a plausible case (even on the charge of leaking classified documents) by pointing to the principles we developed at Nuremburg: that just following orders isn't an excuse for committing war crimes or crimes against humanity. That is, military personnel have a moral duty to disobey immoral or illegal orders. The documents released, among other things, showed a number of these crimes.

    I think the case for the charge of aiding the enemy is very weak. To construe Manning's actions as aiding the enemy (by knowingly having unauthorized communication with an enemy) is to call all cases of leaking classified documents the crime of aiding the enemy. If that's true, then why have two separate crimes? (That is, if it's impossible ever to commit the crime of leaking classified documents without also aiding the enemy, then we should simply do away with the lesser charge.)

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