November 26, 2012
Why, what it means, doesn’t mean, and what next
By Jeff Paterson, Bradley Manning Support Network and Veteran Member of VFP Chapter 069 in San Francisco, CA.
Army Private Bradley Manning recently informed the military court that he was, in fact, the source of information published by WikiLeaks. While the 24 year old Intelligence Analyst, effectively, took responsibility for transferring classified documents, in violation of military regulations, he maintained that he was not guilty of all 22 charges against him.
“PFC Manning has offered to plead guilty to various offenses through a process known as “pleading by exceptions and substitutions,” explained Manning civilian defense attorney David Coombs on his blog. Manning is “attempting to accept responsibility for offenses that are encapsulated within, or are a subset of, the charged offenses…. PFC Manning is not pleading guilty to the specifications as charged by the government,” added Coombs. Nor is he “submitting a plea as part of an agreement or deal with the government.”
“Pleading by exceptions and substitutions” is very rare–so rare that most observers of the proceedings were thoroughly confused. Some media outlets incorrectly reported that Manning was “seeking a deal”, “pleading guilty”, or trying to nullify a life sentence–or even the death penalty. It’s important to clarify that no deal is being sought, Manning no longer faces the death penalty, and his plea doesn’t prohibit the maximum sentence of life in prison. Manning’s plea confused many, simply because the truth isn’t usually offered up in such proceedings without something in return. But that is what happened.
Why would Manning accept responsibility?
Manning needed to accept responsibility, so that he could move forward with his defense as a whistle-blower, ahead of the scheduled, February 4, 2013, start of his court martial at Fort Meade, Maryland.
Supporters of Manning have long hailed him as a young man, with a conscience, who heroically uncovered evidence of war crimes and government corruption. Yet, many cling to the narrative of Manning, the disillusioned, unstable, gay soldier, serving precariously under “Don’t Ask, Don’t Tell”.
Neither the defense nor the prosecution, believe Manning’s difficulties in the Army are a primary aspect of what happened. Neither side has disputed Manning’s motives, as summed up in this online chat, prior to his arrest: “I want people to see the truth… because without information, you cannot make informed decisions as a public… I was actively involved in something that I was completely against.” According to the prosecution, Manning also provided the following note, to WikiLeaks, when he, anonymously, uploaded a cache of battlefield reports of the Iraq War: “This is perhaps one of the most significant documents of our time… removing the fog of war and revealing the true nature of 21st century asymmetric warfare.”
While doing his job, Manning analyzed horrific surveillance videos of the bloody and chaotic Iraq War unfolding around him. In stark contrast to the “Aiding the Enemy” and Espionage Act violation charges the prosecution has painted him with, Manning is now free to explain how he was trying to do the right thing, expecting nothing in return, while sitting in that dark bunker at Forward Operating Base Hammer.
“God knows what happens now. Hopefully worldwide discussion, debates, and reforms – if not, we’re doomed,” Manning allegedly told a government informant before his arrest. Now with this plea offering, he’s taken responsibility on the most favorable terms available to him.
At the conclusion of the “Article 32” pre-trial investigative hearing back in December 2011, Manning’s attorney David Coombs explained that his goal was to show the court “why things happened, while the government was only interested in what happened.” In that context, this plea doesn’t represent a change of course for the defense.
What does such a plea actually change?
The plea offered by Manning doesn’t change the charges against him, nor does it alter the possible maximum sentence of life in prison.
The presiding judge, US Army Colonel Denise Lind, may choose to reject Manning’s plea on technical grounds (if so, technically, Manning will have to unaccept responsibility). If the plea is accepted, the prosecution is free to present its case as planned. Manning’s plea offering only addresses three lesser aspects of a couple lesser charges, so the government could easily accept Manning’s plea and still “upcharge” him.
Manning’s plea could make the prosecution’s job easier, if they are relieved of the burden of proving he accessed documents and transferred them to WikiLeaks. Without this new twist, Manning’s court martial was expected to last at least six weeks, with possibly four of those weeks dedicated to testimony covering information technology-related forensic evidence–such as computer and router logs, login passwords, network access records, and hard drive images. The court martial might now become an expedited two or three week affair.
While the government’s burden of proof may have been reduced overall, it is important to understand that Manning is only admitting to violating military regulations that cover the approved usage of secure computers and the appropriate handling of information. During previous pre-trial hearings, Manning’s defense has shown that every member of his intelligence office in Iraq also violated these same regulations. While other soldiers didn’t share documents with WikiLeaks, they did install unauthorized video games and software and they shared a library of bootleg music and movies on secure Army computers. As Manning is the only soldier charged with any of these violations, the issue of selective prosecution is raised.
Manning’s defense team has had a year, now, to review, at least, some of the forensic evidence. As a courtroom observer, I’ve found the prosecution’s data evidence compelling. It’s likely that Manning’s defense team doesn’t believe there is a reasonable chance to prevail with a “you got the wrong guy” argument, at least not in front of Judge Lind and a jury comprised of Army officers and career enlisted service members. Or, Manning may simply want to be able to tell the truth, regardless of the strength of the evidence available to the prosecution.
Actual deal now less likely
Now that Bradley Manning has unilaterally offered to take responsibility for the transfer of information to WikiLeaks, the prosecution has less motivation to offer him any worthwhile deal, including a sealed maximum sentence, in exchange for a prosecution friendly “Stipulation of Facts”.
A “Stipulation of Facts” is a document of agreed upon facts, by all parties, in a military court martial proceeding. The defense often agrees to facts favorable to the prosecution. In exchange, the defendant receives a sealed maximum sentence agreement opened by the judge only after sentencing. This “secret” agreement often reduces the sentence announced at the conclusion of a court martial. Given the extremely high rate of conviction by military trials, this is a routine defense counsel tactic.
Manning was pressured to cooperate with the government’s efforts to indict WikiLeaks (and Julian Assange specifically) with nine months of brutal and illegal pre-trial confinement conditions at Marine Base Quantico, Virginia, from July 29, 2010 until April 20, 2011. It is unlikely that he’ll change his mind now and cooperate after public outcry secured for him non-abusive confinement conditions at Fort Leavenworth, Kansas. Manning’s demeanor in the courtroom during pre-trial hearings indicates that he’s looking forward to making his case.
Late in the game?
Bradley Manning was detained in Iraq on May 27, 2010, and imprisoned two days later–129 weeks ago. So why did he wait until “so late in the game” to accept responsibility?
In the normal calendar of a court martial, the investigative “Article 32” hearing, the pre-trial “Article 39A” hearings, and the start of the actual trial, are supposed to take place within 120 days of arrest. This is the “speedy trial” guaranteed by military law. US military court martial procedures are dictated by various “articles” of the Uniform Code of Military Justice (UCMJ), with additional guidance from the Rule for Court Martial (RCM) manual.
So while the proceedings are now taking place quickly, for most of the last two and a half years, Manning has languished in prison awaiting his day in court. This has gone on for so long that the defense will be able to make a compelling argument for dismissing all charges, at the December 10-14 hearing at Fort Meade, based on the government’s violation of Manning’s right to a speedy trial under RCM 707 and UCMJ “Article 10”.
In his September 19, 2012, motion, Manning’s attorney, David Coombs, explained:
“With trial scheduled to commence on 4 February 2013, PFC Manning will have spent a grand total of 983 days in pretrial confinement before even a single piece of evidence is offered against him. To put this amount of time into perspective, the Empire State Building could have been constructed almost two-and-a-half times over in the amount of time it will have taken to bring PFC Manning to trial.”
This seems “late in the game” because the government changed the rules to extend the game by a factor of eight. During this seemingly endless game, the prosecution benefited from limitless resources, while the defense team got by on funding from a grassroots support campaign. It is precisely during the “Article 39A” hearings, finally underway, that motions and plea offers, such as Manning’s, are made and litigated.
The real defense
Manning’s attorney has long contended that the defense will show that the release of these documents brought little to no harm to U.S. national security, and that Manning’s motives were to expose crime, fraud, corporate malfeasance, and abuse. They hope to show that this was, indeed, the outcome. The prosecution’s position will remain that Manning’s motives and the actual outcomes are irrelevant during the guilt phase of trial.
Some members of Congress and media pundits have called for Manning to be lynched because “lives were put in danger”, and informants possibly killed. Yet the government has not named a single individual, anywhere on Earth, who was physically harmed as a result of the WikiLeaks publications—now over two years after the fact.
Every indication is that the “harm” was limited to the U.S. State Department being embarrassed by some diplomatic cables released; however, embarrassment has never been a legitimate justification for classifying a document—and certainly not the thousands of documents which we now know were inappropriately classified in the first place. Meanwhile, the Iraq War has ended (more or less), and we’re told that the Afghanistan War is nearing an end.
Command influence led to trial by judge alone
In another aspect unique to court martials, Manning, last week, opted not to be tried (and possibly sentenced) by a military jury, but by judge Colonel Lind alone. She will decide guilt or innocence on all charges and, if needed, determine sentencing at the conclusion of the punishment phase of court martial.
During an exchange, captured on video, President Barack Obama declared that Manning “broke the law”, at a campaign fundraiser in San Francisco on April 21, 2011. Echoing the Commander-in-Chief, General Martin Dempsey, Chairman of the Joint Chiefs of Staff, stated that Manning “did violate the law“ at a press conference a couple of weeks later. Major General Michael Linnington, the direct overseer of Manning’s court martial (referred to as the “Convening Authority”), reports directly to the Pentagon. So it’s no surprise that the defense has little confidence in being able to find a jury untainted by this command influence. This type of influence is specifically prohibited under UCMJ “Article 37”; however, there is no indication, thus far, that the government will face any consequences.
Will Judge Lind be able to ignore the influence of her Commander-in-Chief and Pentagon superiors and, if so, will she then be moved by Manning’s arguments, and to what degree? Regardless, it is safe to say that Manning’s arguments, that he was following his conscience, will be more compelling before, and not after, the prosecution makes its case with forensic evidence.
Ensuring drama, to the very end of this court martial, Judge Lind will have nearly limitless leeway, when announcing punishment, if Manning is found guilty. While the maximum sentencing, on all 22 charges, amounts to a couple of lifetimes in prison, there are no minimum sentencing requirements. Manning could be found guilty of only one charge and receive life in prison, or be found guilty of all charges and sentenced to a few years or less.
The goal of “military justice” is not actually justice, but military discipline. Many factors, including public opinion and the “reputation of the military”, are key ingredients in determining what discipline is appropriate—more so than in civilian legal proceedings. If Judge Lind understands that a significant section of the American public is sympathetic to Manning, the odds greatly improve that she’ll find “middle ground” favorable to Manning throughout these proceedings.
Conspiracy of abuse at Quantico
Bradley Manning’s defense team is scheduled to argue another motion to dismiss all charges November 27th through December 2nd. This motion delves into great detail on how Pentagon-level Lieutenant General George Flynn secretly ordered extreme and unlawful confinement conditions for Manning at Quantico, Virginia. These conditions were so severe that United Nations Chief Rapporteur on Torture Juan Mendez condemned them as “cruel, inhuman and degrading” in his official report.
While the UCMJ “Article 13” prohibits all pre-trial punishment any more rigorous than required to insure that the accused appears at legal hearings, Manning was subjected to solitary confinement, prohibited from undertaking any meaningful physical exercise, and subjected to around- the- clock harassment–including being stripped and made to stand naked during some roll calls.
The military doesn’t deny that the mistreatment occurred, but argues that it was for Manning’s well-being and safety. Brig authorities claimed that mental health assessments dictated these extreme “Maximum” measures and “Prevention of Injury” protocols for Manning alone out of all brig detainees and prisoners.
In emails, long hidden from the defense, it was exposed, in September, that Manning’s treatment had absolutely nothing to do with his health. Lt. Gen. Flynn, while serving as the Commanding General of the Marine Corps Combat Development Command, illegally ordered Manning’s solitary confinement. These illegal orders were then carried out, down the chain of command, without much questioning. The only exception appears to be the mental health professionals, on staff at Quantico, who spoke up against Manning’s treatment. They were threatened with losing their jobs if they persisted with their objections.
Military law would appear to favor Manning’s motion to dismiss, based on these “Article 13” violations. Common sense, however, indicates that Judge Lind will be under unimaginable pressure not to do so. If Judge Lind doesn’t dismiss charges, the defense, in its court filings, suggests the more common remedy of multiple days of confinement credit for every day of mistreatment. The defense will argue for ten days credit, while the prosecution will likely ask for “one for one”—in other words, no additional credit.
If Judge Lind agreed to the defense’s credit position, Manning would receive nearly seven and a half years credit for his time at Quantico plus another couple of years credit for “appropriate” pre-trial confinement. In this situation, Manning might walk out of prison very soon, even if he were sentenced to ten years confinement. If Manning is sentenced to 100 years in prison, then this potential decade of confinement credit becomes meaningless.
If confinement credit, for being tortured, becomes worthless, Judge Lind would be giving the military a free pass to mistreat all pre-trial U.S. military personnel, if there were no actual consequences for doing so. This could be the point where the distinction between foreign “Enemy Combatants” at secret prisons facing tribunals, and our limited, but well established, guarantees of due process for U.S. military service members, as outlined by the Uniform Code of Military Justice, are forever blurred.
Many have chosen not to take a position, regarding Army PFC Bradley Manning, because they were not comfortable supporting someone for something they may, or may not, have done. Now is the time to get off that fence.
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