Brad/Chelsea Manning: Charged w/AFG file leak, Cdn angles, disposition (merged)

[Blackadder1916]

Here is what our Criminal code, art 46(2)(b) states, Milnews:

46 (2) Every one commits treason who, in Canada,

(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;

When someone who has been found guilty of an infraction/crime wishes to enter Canada, the Customs/Immigration officer at the border has to determine admissibility by determining what is the Canadian equivalent infraction. Then, depending on the Canadian equivalent and it's maximum punishment, a determination is made: Admissible (if it was just equivalent to one of our summary conviction offence), inadmissible without first obtaining "permission" from the Canadian Embassy/consulate (usually, criminal acts punishable by a max of ten years), forever inadmissible, for crimes with more than ten years penalty.

In the present case, the officer at the border did his job properly. The document you see is NOT a determination by the Minister, it is the Border services officer's report TO the Minister of the exclusion order he/she issued and the reason for his/her determination, in case of further appeal to the said Minister.

Barring any future court/administrative fracas, that's a pretty good fit, then.  Thanks!

As they say, the devil is in the details (or the exacting wording in the case of law).  Should Ms (former Pvt) Manning appeal this finding (if she can) by a Border Services Officer (BSO?), she may have a case in overturning that specific determination of inadmissibility based on the specific item of Canadian law that the officer chose to use as the "equivalent" to the convictions that Manning received in the USA.

That article of the Criminal Code specifically deals with "communicating to an agent of a state other than Canada", thus that element of the offence must be present for it to be "treason".  Choosing that article and associating Manning's offence with treason seems (to me) to be (or have the potential to have been) a deliberate move on the part of the BSO to make a statement as to their opinion on Manning's action and to potentially remove any possibility of her entry to Canada.  With the exception of child sex crimes there is probably no crime that would stir greater disapprobation.  Or, it may have been a simple error on the part of the BSO.  However, in the facts of her case, Manning did not provide information or communicate with "an agent of an other state".  The US Army's prosecution of her did not prove so, nor did they contend it so.  If this article of the Criminal Code was not equivalent, then what should have been the item that justified inadmissibility to Canada?

Remember, (former) Pvt Manning was charged and convicted of multiple violations of the Uniform Code of Military Justice (UCMJ).  While the UCMJ is roughly equivalent to our Code of Service Discipline (CSD), there are (or so it seems to me) significant differences.  The attached PDF is the US Army's press release that itemized the charges and specifications and the determination (verdict) of each; it can also be found at this link.

In a nutshell, Manning was charged with:

I.  Violation of UCMJ, Article 104 NOT GUILTY  (Article 104 deals with "Aiding the enemy" and was the one charge that had a maximum penalty of death).

There was one specification to this charge.  It would have been roughly equivalent to some CSD offences in NDA 74 or 75
Though these CSD offences would have a maximum sentence of life imprisonment, it is moot for inadmissibility since she was found not guilty.

II.  Violation of UCMJ, Article 134 GUILTY  (Article 134 is the "General article") 

Article 134 seems to roughly equivalent to Sect 129 of the NDA, though since the UCMJ does not have a separate, specific article that address violations of other US laws this article also seems to be used as we would Sect 130

There were sixteen (16) specifications to this charge.  Three (3) of the specifications were stated as actions "prejudicial to good order and discipline" only and the other thirteen (13) referenced violations of other US codes as the basis for actions that were "prejudicial to good order . . .".  The other US codes referenced were:

18 US Sect. 793(e) (Gathering, transmitting or losing defense information) Seven of the specs referenced this, and she was found guilty on six of the specs and not guilty on one.

18 US Sect. 641 (EMBEZZLEMENT AND THEFT - Public money, property or records)  There were five specifications under Charge II that referenced this other US law and the value amount specified in each instance was in excess of $1000.  She was found guilty in all five of these specifications.

18 US Sect. 1030(a)(1) (Fraud and related activity in connection with computers)  There was one specification under Charge II that referenced this other US law and which was a guilty.

III. Violation of the UCMJ, Article 92 GUILTY (Article 92 deals with "Failure to obey order or regulation")  The rough equivalent in the CSD would be a mix of Sect 83 (Disobediance of a lawful command) and Sect 129 which specifically lists failing to follow regulations.  The three specifications to this charge all referenced Army Regulations as the violations.

If the Canadian Criminal Code offence of Treason is not an appropriate equivalent to the US convictions, what would be.  Should the BSO's report to the Minister have referenced NDA 129 that prescribes punishment as "dismissal with disgrace from Her Majesty’s service or to less punishment" or NDA 130 which prescribes the punishment as that which would be the "minimum" (this section confused me re-read it and no longer confused) the punishment specified for the enactment that was violated with some dismissal with disgrace thrown in.

Without getting any deeper into the weeds about what Canadian law (criminal or otherwise) that might be the best equivalency, I'll look at the most prominent action of Manning, i.e. providing information that she wasn't supposed to.  In that case, my opinion is that the BSO should have referenced the Security of Information Act as the Canadian law (specifically Sect 4(1)) that, had Manning been subject to Canadian law when he committed these acts. would likely have been the offence that he would be charged with.  The punishment prescribed is that, unless otherwise stated (there are some offences lighter and some that go to life), "a person who commits an offence under this Act is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years".  That would have been sufficient to reach the same result of denying admission without opening up a potential path to appeal and overturn.

And as an example of application of the Security of Information Act, we can look to R. v. Delisle, whose offences relating to providing information was dealt with through Section 16(1) of that act, though most here (including me) would probably believe that the treason offence of the Criminal Code would have been more appropriate.

As it is apparent that Ms. Manning is not someone who will likely avoid the spotlight in the future (either by choice or circumstance), we can probably expect that this is not the last we'll hear on this latest wrinkle in her life.  And, (IMO) there is probably quite a bit for the lawyers to grab onto concerning this and make it last for some time to come.

 

[Colin Parkinson]

This is starting to smell like the Harvard situation.  I am not a fan Manning's insinuation on social media that opposition to her public persona is a smear on the LGBTQ community.  It's because she was disloyal and committed a serious felony.

Technically "He" was guilty, "she" seems to think she was only along for the ride

 

[Oldgateboatdriver]

As they say, the devil is in the details (or the exacting wording in the case of law).  Should Ms (former Pvt) Manning appeal this finding (if she can) by a Border Services Officer (BSO?), she may have a case in overturning that specific determination of inadmissibility based on the specific item of Canadian law that the officer chose to use as the "equivalent" to the convictions that Manning received in the USA.

That article of the Criminal Code specifically deals with "communicating to an agent of a state other than Canada", thus that element of the offence must be present for it to be "treason".  Choosing that article and associating Manning's offence with treason seems (to me) to be (or have the potential to have been) a deliberate move on the part of the BSO to make a statement as to their opinion on Manning's action and to potentially remove any possibility of her entry to Canada.  With the exception of child sex crimes there is probably no crime that would stir greater disapprobation.  Or, it may have been a simple error on the part of the BSO.  However, in the facts of her case, Manning did not provide information or communicate with "an agent of an other state".  The US Army's prosecution of her did not prove so, nor did they contend it so.  If this article of the Criminal Code was not equivalent, then what should have been the item that justified inadmissibility to Canada?

Remember, (former) Pvt Manning was charged and convicted of multiple violations of the Uniform Code of Military Justice (UCMJ).  While the UCMJ is roughly equivalent to our Code of Service Discipline (CSD), there are (or so it seems to me) significant differences.  The attached PDF is the US Army's press release that itemized the charges and specifications and the determination (verdict) of each; it can also be found at this link.

In a nutshell, Manning was charged with:

I.  Violation of UCMJ, Article 104 NOT GUILTY  (Article 104 deals with "Aiding the enemy" and was the one charge that had a maximum penalty of death).

There was one specification to this charge.  It would have been roughly equivalent to some CSD offences in NDA 74 or 75
Though these CSD offences would have a maximum sentence of life imprisonment, it is moot for inadmissibility since she was found not guilty.

II.  Violation of UCMJ, Article 134 GUILTY  (Article 134 is the "General article") 

Article 134 seems to roughly equivalent to Sect 129 of the NDA, though since the UCMJ does not have a separate, specific article that address violations of other US laws this article also seems to be used as we would Sect 130

There were sixteen (16) specifications to this charge.  Three (3) of the specifications were stated as actions "prejudicial to good order and discipline" only and the other thirteen (13) referenced violations of other US codes as the basis for actions that were "prejudicial to good order . . .".  The other US codes referenced were:

18 US Sect. 793(e) (Gathering, transmitting or losing defense information) Seven of the specs referenced this, and she was found guilty on six of the specs and not guilty on one.

18 US Sect. 641 (EMBEZZLEMENT AND THEFT - Public money, property or records)  There were five specifications under Charge II that referenced this other US law and the value amount specified in each instance was in excess of $1000.  She was found guilty in all five of these specifications.

18 US Sect. 1030(a)(1) (Fraud and related activity in connection with computers)  There was one specification under Charge II that referenced this other US law and which was a guilty.

III. Violation of the UCMJ, Article 92 GUILTY (Article 92 deals with "Failure to obey order or regulation")  The rough equivalent in the CSD would be a mix of Sect 83 (Disobediance of a lawful command) and Sect 129 which specifically lists failing to follow regulations.  The three specifications to this charge all referenced Army Regulations as the violations.

If the Canadian Criminal Code offence of Treason is not an appropriate equivalent to the US convictions, what would be.  Should the BSO's report to the Minister have referenced NDA 129 that prescribes punishment as "dismissal with disgrace from Her Majesty’s service or to less punishment" or NDA 130 which prescribes the punishment as that which would be the "minimum" (this section confused me re-read it and no longer confused) the punishment specified for the enactment that was violated with some dismissal with disgrace thrown in.

Without getting any deeper into the weeds about what Canadian law (criminal or otherwise) that might be the best equivalency, I'll look at the most prominent action of Manning, i.e. providing information that she wasn't supposed to.  In that case, my opinion is that the BSO should have referenced the Security of Information Act as the Canadian law (specifically Sect 4(1)) that, had Manning been subject to Canadian law when he committed these acts. would likely have been the offence that he would be charged with.  The punishment prescribed is that, unless otherwise stated (there are some offences lighter and some that go to life), "a person who commits an offence under this Act is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years".  That would have been sufficient to reach the same result of denying admission without opening up a potential path to appeal and overturn.

And as an example of application of the Security of Information Act, we can look to R. v. Delisle, whose offences relating to providing information was dealt with through Section 16(1) of that act, though most here (including me) would probably believe that the treason offence of the Criminal Code would have been more appropriate.

As it is apparent that Ms. Manning is not someone who will likely avoid the spotlight in the future (either by choice or circumstance), we can probably expect that this is not the last we'll hear on this latest wrinkle in her life.  And, (IMO) there is probably quite a bit for the lawyers to grab onto concerning this and make it last for some time to come.

Yes. Security of Information Act would have been my choice too, but since the penalty is the same (14 years max. in both cases and therefore, over ten years), the result would still be an exclusion.

If she was consulting me on a potential appeal, I would probably tell her: "You will likely succeed in having a reference to the treason article overturned, but you will then be found to have committed the infraction user the S.I.A. and the result would be the same. Since the Officer's error in choice of law is not dispositive of your right to enter Canada, your appeal will not succeed. Don't waste your time and money."

 

[FJAG]

Yes. Security of Information Act would have been my choice too, but since the penalty is the same (14 years max. in both cases and therefore, over ten years), the result would still be an exclusion.

If she was consulting me on a potential appeal, I would probably tell her: "You will likely succeed in having a reference to the treason article overturned, but you will then be found to have committed the infraction user the S.I.A. and the result would be the same. Since the Officer's error in choice of law is not dispositive of your right to enter Canada, your appeal will not succeed. Don't waste your time and money."

I think that you can also look to s 75(b) of the NDA which reads:

75 Every person who:

(b) without authority discloses in any manner whatever any information relating to the numbers, position, materiel, movements, preparations for movements, operations or preparations for operations of any of Her Majesty’s Forces or of any forces cooperating therewith,

which has a maximum punishment available upon conviction of life imprisonment.

While Charge II was cited under UCMJ 134 (a near equivalent to our NDA s129) the numerous specifications were described primarily as violations of 18 US Code 793(e):

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

or 18 US Code 641:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—

Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

which are primarily respecting unauthorized disclosure of information provisions. (Note as well that there were other convictions and also that the way that they use USMC 134 is more a combination of both NDA s 129 and s 130)

Be that as it may, there are more then sufficient equivalencies in our laws to be used which provide a greater than 10 year punishment so as to deny him entry here.

:cheers:

 

[Retired AF Guy]

You haven't met many folks from the Int branch, have you?

Whoa Nelly!! Them's fighting words!!

 

[Shrek1985]

Technically "He" was guilty, "she" seems to think she was only along for the ride

Why not? it worked for Bruce Jenner and his car crash.

Kids these days probably get the idea from the 80% sentencing disparity between men and women across the west for the same crimes.

 

[Loachman]

http://www.nationalreview.com/article/451986/chelsea-manning-espionage-wikileaks-canada-border-officials-deny-entry-harvard-university?utm_source=Sailthru&utm_medium=email&utm_campaign=170929_Jolt&utm_term=Jolt

Chelsea Manning: Hero? No. Traitor? Yes

by Deroy Murdock September 28, 2017 5:58 PM

Canadian border officials were right to block the former soldier convicted of disclosing classified U.S. military and diplomatic documents.

Canada dared call it treason.

American’s northern neighbor slammed the door on Chelsea (née Bradley) Manning when she tried to drive into Quebec last week. Canadian authorities blocked Manning “on grounds of serious criminality,” according to official records, “that would equate to an indictable offense, namely treason.”

Canada’s red light mocked the laurels and hearty welcomes offered to Manning since she waltzed out of the United States Disciplinary Barracks at Fort Leavenworth on May 17. Manning was feted like a conquering heroine in New York City’s gay-pride parade last June. This month’s Vogue magazine showcases Manning in a one-piece swimsuit, snapped by celebrity photographer Annie Leibovitz. Manning will be a headliner at October’s New Yorker Festival. And Harvard recently named Manning a visiting fellow.

“She speaks on the social, technological and economic ramifications of Artificial Intelligence,” Harvard breathlessly announced. “As a trans woman, she advocates for queer and transgender rights as @xychelsea on Twitter.” Tragicomically, Harvard described Manning as “a Washington D.C. based network security expert.”

These plaudits are outrageous, given why Manning landed behind bars: In July 2013, Bradley Manning was convicted of 20 of 22 charges filed against him, including six violations of the Espionage Act of 1917.

Manning received “the stiffest punishment ever handed out in the U.S. for leaking to the media,” the Associated Press reported, “for spilling an unprecedented trove of government secrets.” This included “more than 700,000 classified military and diplomatic documents, plus battlefield footage, to the anti-secrecy website WikiLeaks. By volume alone, it was the biggest leak of classified material in U.S. history, bigger even than the Pentagon Papers a generation ago.”

Manning was acquitted of “aiding the enemy.” Nonetheless, presiding judge Colonel Denise Lind ruled that Manning had “reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation.” Further, Manning possessed “knowledge that intelligence published on the Internet was accessible to al Qaeda.” She added: “Manning’s conduct was of a heedless nature that made it actually and imminently dangerous to others. His conduct was both wanton and reckless.”

Despite these high crimes, Obama granted Manning clemency, thereby slashing her 35-year prison term to seven years already served. It’s inconceivable that Obama would have spared Manning 80 percent of her sentence were she still named Bradley.

All of this has given intelligence experts fits.

“Senior leaders in our military have stated publicly that the leaks by Ms. Manning put the lives of U.S. soldiers at risk,” said former CIA acting director Michael Morrell. He resigned from Harvard’s Belfer Center on September 14, refusing to associate with an institution “that honors a convicted felon and leaker of classified information.”

Chastened by the reaction to the emoluments that it presented to Manning, Harvard retreated.

“We are withdrawing the invitation to her to serve as a Visiting Fellow - and the perceived honor that it implies to some people,” Kennedy School of Government dean Douglas Elmendorf conceded the next day. “I apologize to her and to the many concerned people from whom I have heard today for not recognizing upfront the full implications of our original invitation.”

“As a Harvard graduate, I was especially offended by the honors bestowed on Chelsea Manning by the Kennedy School,” said Jefferson Adams, professor emeritus of history and international relations at Sarah Lawrence College. The author of Strategic Intelligence in the Cold War and Beyond continued: “When the dean started to backtrack and rescind the fellowship, he only compounded matters with his flimsy statements about diversity. It was radical chic in full display - and will not be forgotten soon.”

“Canada has done absolutely the right thing in refusing entry to Manning based on that individual’s previous conviction for espionage, and was correct in calling his/her actions ‘treason,’” Richard Valcourt, editor-in-chief of the International Journal of Intelligence and CounterIntelligence, tells me. “Manning is no hero, whistle-blower, or any variation thereof. Nor is Edward Snowden. Both belong in jail for having significantly endangered the security of the American people.”

 

[The Bread Guy]

STILL wants to come to Canada ...

A decade after Chelsea Manning revealed U.S. state secrets about the wars in Afghanistan and Iraq, officials in Ottawa are seeking to permanently block her from entering Canada.

A tribunal hearing to determine Ms. Manning’s admissibility – meaning, her legal ability to enter Canada – is scheduled to take place on Oct. 7.

In 2013, an American judge ordered the former U.S. Army private to spend 35 years in jail after finding her guilty of providing the WikiLeaks organization with hundreds of thousands of sensitive U.S. military and diplomatic documents. That sentence was later commuted by U.S. president Barack Obama.

Now, Canada’s Immigration and Refugee Board (IRB), an administrative tribunal that makes decisions about who can enter Canada, is about to revisit the case. Federal officials are preparing to argue that Ms. Manning’s past crimes render her too dangerous to be allowed entry into the country. The government’s position is that she should be blocked on grounds of serious criminality. Thousands of people are turned away at the Canadian border for similar reasons each year ...

 

[CBH99]

What are some of the thoughts on this? Thoughts/opinions, etc?