Apparently this thing called trending on Twitter tells you what the collective world conscience is thinking about.  And I just checked with our CAAFlog twitter page (@CAAFlog) and it looks like “Bradley Manning” is trending right now.  A closer look at those trending tweets reveals most are organizations calling the sentence appalling and similar sentiments. 

So maybe this is the counter conscience argument, but I’d like to think of it as just my $.02. 

First, this is not a civilian prosecution.  This is a court-martial of a US Army intelligence analyst (Military Occupational Specialty 35F) that entered the Army in October 2007. He was assigned to the 2nd Brigade Combat Team, 10th Mountain Division and deployed to Iraq in October 2009.  His job was to protect classified information and use it to aid US forces in fighting our nation’s (and our Coalition partners’) enemies in Iraq.  Regardless of whether anyone actually died as a result of the releases Manning made, I don’t think it is a stretch to say that the charges he was convicted of run directly contrary to what he was supposed to be doing in Iraq. 

Second, PFC Manning was convicted and sentenced for leaking classified information to a website in May 2010 after contacting various news organizations about leaking the information to them.  I have not heard anything in the narrative about the case that Manning ever attempted to take his concerns to his superiors, an IG, a member of Congress, or anyone else with the power to actually change US policy.  Instead he publicly aired those concerns, which centered around, from what I can best tell, documenting “the true cost of the wars in Iraq and Afghanistan” and righting various wrongs with US policy decisions relating to our allies and various unspecified frustrations with the backdoor nature of diplomacy around the globe.  While PFC Manning may have been frustrated with all of this, he took an oath to set those things aside, obey orders, and protect our nation.  He need only have listened to the sage words of Viper to know what to do in this situation, “[W]e don’t make policy here, gentlemen. Elected officials, civilians, do that. We are the instruments of that policy.”

And, lastly, while I think deterrence could probably have been served with a shorter sentence, in the 10 year neighborhood, I think the one thing even critics of the sentence should acknowledge is the skill with which Judge Lind appeared to handle this court-martial.  While the proceedings ended in a harsh sentence, Judge Lind appeared in control, efficient, and fair in administering justice in the case.  I have no doubt there will be appellate issues raised by Manning’s lawyer(s), some of which may even hinge on Judge Lind’s rulings and end up being meritorious.  But my sense is that PFC Manning cannot complain that she deprived him of due process or that he was somehow railroaded by a court-martial system driven by the military judge’s bloodlust or vengeance.

30 Responses to “A Few Thoughts on PFC Manning’s Sentence”

  1. Devildwglt says:

    Mike I have to agree. At least he didn’t have LtCol Palmer saying all defendants are guilty and that all defendants are scumbags and calling Marines’ behaviors nothing more than the government holding the accused accountable…..Before the trial started…..Manning, count your blessings!

  2. dru says:

    Mike, 35 years is on the light side of a reasonable sentence range for his convictions. This was a trained military intelligence soldier who fully understood the nature of the information he disclosed, and the significant harm done by his disclosure of it. A panel would have given him a much more lengthy sentence.  His actions were knowing and deliberate, and the sentence fairly reflects the conduct.

  3. Mike "No Man" Navarre says:

    Dru–I am not going to disagree with you as I am not involved in sentencing day to day to know what is reasonable given the facts. I am speaking only about deterrence. And I think my post agrees with most of the rest of your comment. Thanks for your thoughts. Same to our USMC commenter.

  4. stewie says:

    I’ll be contrary…there are rapists and child molesters who dont get 35 years.  I dont view him as a hero and I’m mighty fine with a double digit punishment but IMO 35 is way too much because in my opinion this was a dumb confused troubled kid, if I thought he was intentionally and purposefully trying to help the enemy that would be a different story.
     
    I have no doubt that the MJ was nothing but professional, as she has had a long career developing and exhibiting that trait, so not judging or monday morning quarterbacking, just saying that I think a more appropriate sentence in this case would be a lot closer to ten than thirty five.

  5. Shawn says:

    Nicely put, Mike.  Who’s Viper?  And doesn’t that line about instruments of policy come from the movie, Top Gun?

  6. ResIpsaLoquitur says:

    The comments on the range of sites I read have been pretty bipolar: he’s either gotten too little (the kid should be put to death) or too much (he’s a hero and should get a medal).  There’s no satisfying anybody.
    I’m no intel analyst.  There were large chunks of this trial that were classified, so we’ll never know the full extent of what damage he did or didn’t do.  I do know that when you join the armed forces, the essence of your duty is to have a rifle stuck in your hands and to be prepared to use it in the face of certain death.  All of your actions need to show that you can be counted on to do that.  At the same time, he’s no criminal genius; he’s a moron who had a chip on his shoulder and acted out of ego, not out of intent to aid bin Laden.  He didn’t, I don’t know, shoot up 40 of his fellow soldiers while calling upon Allah.
    I’d like both sides to shut the heck up and realize that 35 years is pretty darn good for this case, even with PTC and parole taken into account.  The Manning-worshippers need to realize that the kid is gravely unsuitable for the Army; the people calling for execution need to take a chill-pill and remind themselves that he’s an immature young adult who got in way over his head.

  7. Joseph Wilkinson says:

    I think this one needed a high sentence precisely because his crimes drew so many admirers…if other young fellows know they can betray their trust like that, still be young when they get out, and be heroes to that many people by doing it, they might pull this one stone cold sober, in the state of mind where deterrence works best.

  8. Mike "No Man" Navarre says:

    Viper was the instructor in TG who uttered those words of wisdom.

  9. 1LT Paco says:

    I might be behind here, but was there any Article 13 credit given?

  10. Charlie Gittins says:

    I agree that Judge Lind did an admirable job of directing traffic in this case.  I never had a case with her, but from what I have read, she is an even-handed judge on motions and merits, if not a little heavy handed on sentence.  
    I will say, I think Manning (and Snowden) have done Americans a tremendous service by shining light on our Government’s activities.  The Apache killing of journalists was horrendous and a clear violation of the requirement to PID the target BEFORE engaging.  (Yeah, I know, the investigation cleared them.  We all know you assign the investigator you believe will reach the conclusion you want to have reached, in the military.  Been there witnessed that too many times.).  While release of diplomatic cables may be embarrassing, we’ll get over it, as will our allies.  
    He emboldened Snowden to do what he did.  I personally consider what Snowden did to be a heroic act.  It has exposed our Government as one that is intent on spying on Americans who they have no reason to suspect are engaged in terrorism.  It has caused a belated, but necessary, Congressional review of the NSA programs and resulted in exposure of significant overreaching by the intelligence community against Americans, even if you actually believe that overreaching was “unintentional.”   
    These disclosures have caused a useful reexamination of what our Government is doing and how it is doing it and that is a good thing.
    Flame on cool-aide drinkers!
     

  11. ResIpsaLoquitur says:

    I just realized that nobody in the press is talking about Manning’s DD.  And why would they?  At best, to them it means that Manning doesn’t get a GI bill.  Am I wrong to assume that Manning’s DD counterbalances what some perceive to be a light sentence to confinement?

  12. 1LT Paco says:

    I might be inclined to agree with Mr. Gittins.  Only problem is the haphazard way Manning (and to a lesser degree Snowden) made their disclosures.  As an analogy:  we as defense counsel, when forced to disclose confidential information from our clients, must reveal the minimum necessary information.  That disclosure must be made thoughtfully and with precision.  Same thing with these guys.  Either they are idiots (Manning) or they really don’t have the best interests of their country at heart (I would submit Snowden probably falls into this category — why for example did he disclose details of US and UK efforts to spy on particular world leaders at a 2009 conference using key stroke recorders — has nothing to do with PRISM but is instead normal spy activities). See:  http://www.nytimes.com/2013/06/17/world/europe/new-leak-indicates-us-and-britain-eavesdropped-at-09-world-conferences.html 

  13. J.M. says:

    Long time reader, first time commenter. For Mr Gittins, With respect sir, I disagree with your opinion on the video. It’s very easy for someone to look at the video for the umptenth time and recognize that there was no threat. The Apache crew did not have to luxery of watching the video, rewinding watching again and again on a large screen. If you want to really investigate and determine if the men shown posed a threat within the same context that the pilots made their decision to open fire, then you would have only view the video once (in a highly stressful environment) and have the same amount of time to make a decision on if what you just saw was a man with a weapon or a camera.

  14. westpointquaker says:

    Agree with Mr Gittins.  James Clapper (Director of National Intelligence) lies to Congress and is put in charge of an NSA review committee.  Manning tells the truth and gets 35 years. 
     

  15. Ama Goste says:

    “The Apache killing of journalists was horrendous and a clear violation of the requirement to PID the target BEFORE engaging.”
    Charlie, did you have the same thought in the case below?http://www.foxnews.com/story/2003/06/19/homicide-assault-charges-dropped-against-friendly-fire-pilots/

  16. AFJAGCAPT says:

    http://m.today.com/news/bradley-manning-i-want-live-woman-6C10974915
    With due respect to the LGBTQ community and their attempts to obtain equal treatment in
    our society, I hope this is seen for what it is: a transparent attempt to make his confinement
    a (more politically popular) civil rights issue and enlist a new group of pro-pardon lobbyists.

  17. Phil Cave says:

    If the Pardon Attorney follows the practice that has been in existence for many years, Manning will not be “eligible” for a pardon until he has completed all of his sentence (inlcuding either parole time or MSRP) PLUS five years.  Some media seem to have repiorted seeking a pardon as a next step by the advocates.

  18. Contract Lawyer says:

    A pardon?  Really?  That would look really nice for the President.  The point of this case is the same issue we all deal with when handling classified information.  We follow the rules regarding the classification with robot precision.  We cannot engage in de fact declassification because we fell that disclosure is in the best interest of whoever.  We certainly cannot allow some 25-year old punk to make this decision for an entire country.  I did predict the upward end of 20 to 30 years and believe the 35 years is fair enough.  No doubt Manning will be out in 10 to 12 and this will allow him on the street before he is 40.  He pays his debt to society and still has his life.  This does not bother me, but it would bother me if everyone with security clearances thought that they could release information if they felt it was justified.  The idea of a pardon is just plain silly, but that is the President’s prerogative and I do not see this happening. 

  19. Charlie Gittins says:

    Ama:  Self defense is different.  Harry’s case was totally different.  He was not trolling for targets.  He didn’t shoot unarmed personnel and civilians.  The Air Force failed to let the pilots know that there was a live fire exercise going on in their sector and two pilots thought they were being fired upon by a weapon intelligence had briefed could be used against aircraft — a fact the Government classified so that we would not learn of it (but we did anyway).  The pilots engaged the source of the fire believing it was enemy fire and they were acting in self-defense — a significant dustinction between the Apache and USAF actions.  Don’t even get me started on the Air Farce.  And the clown that was placed in charge of the USAF investigation proves my point about reaching the conclusion desired by carefully appointing your investigating officer knowing their biases.

  20. Lieber says:

    CG,
    You’re wrong.  Well, there are some issues with the three engagements on that video, but none of them are with the first engagement.  The journalists were embedded with a group armed with AK-47s and RPG-7s (both are visible on freeze frames of the video I can show you and photographs of both found on the bodies have been released as well)…sufficient PID right there.  In addition, the group was headed directly for a TIC, in fact the last photo taken by the journalists was around the corner directly at a Bradley which was engaged at the time.  The AWT understandably mistook that for an RPG pointed at the Bradley.  It was a good shoot.  Full stop.

  21. Some Army Guy says:

    Harsh sentence?  Considering that the defense asked for 25 years, I don’t think that Judge Lind’s sentence of 35 years is especially harsh.

  22. Nancy Truax says:

    I don’t think the defense actually “asked for 25 years,” although it was reported in the press that way. What Coombs said was that 60 years is too long given that the classification would expire in 25 years.  But I don’t think he specified any term of years; he just asked her to adjudge a sentence that would allow him to have a life.  Here’s a link to the unofficial transcript made by the Freedom of the Press Foundation:
     
    https://pressfreedomfoundation.org/sites/default/files/08-19-13-PM-session.pdf

  23. Some Army Guy says:

    Thank you for the clarification.  I also see that his DC argued that he needs the opportunity to have a life, to get married and have kids.  Hmmmm….

  24. stewie says:

    yes because as we all know, MJs are deeply swayed by the sentencing recommendations of counsel.

  25. Neutron73 says:

    I’ll just leave this here for some context of Manning’s case:
    http://www.huffingtonpost.com/2013/08/21/shorter-sentences-than-bradley-manning_n_3789754.html?utm_hp_ref=mostpopular
    Disclaimer: I didn’t really follow the Manning case, and quite frankly, didn’t really care.  He released stuff to Wikileaks and stuff.
    Comment away….

  26. paleo says:

    Lost in all of this is the fact (from what I read at the outset of the case) that Manning’s actions could have and should have been prevented if the proper procedures were used in the secure area from which he downloaded those files. It was not a one time lapse, it was chronic and systemic if I remember correctly (it had to be considering the number of trips and CDs etc). What’s happened to the BDE Cdr, XO, and S2 from 2/10 MTN? These security protocols will only be followed when they are inspected and when leadership demonstrates through their actions how important they are. There was no single point of failure here. 
    Manning is, in no way, a hero. There is no way for him to deny knowing the information he disclosed would involve timelines, platforms, methods, and sources to include people and their identifying information. He did not bring sunshine to nefarious government practices, he endangered lives. The significance of that is also why the chain of command and shoddy security protocols deserve thorough examination. 

  27. RKincaid3 says:

    I have unfortunately not been able to follow the Manning case with as much detail as I would like, and I do not know the details of the motions filed in that case.  I am just curious, though…did the defense ever file or consider filing a common-law defense of “necessity” motion?  The motion would seek to have an instruction given involving a consideration of guilt only after first considering a justification defense.  The instruction would require an analysis that does NOT focus on the actor’s state of mind as would be done with an excuse defense such as duress, but instead forces the court to focus on the value of the act itself, notwithstanding the act’s overt criminality.
     
    The defense has limitations, obviously.  For example, no court has ever accepted a defense of necessity to justify killing a person to protect property (which is not an issue in either Manning’s or Snowden’s cases), and there is no federal statutory necessity defense.  But the SCOTUS has recognized the common law defense in federal practice, both civilly and criminally.  Given the debate in the country over the social/national value vice social/national danger of Snowden’s and Manning’s actions to society as a whole, and seeing as they involve the press which are protected from prosecution under the 1st Amendment (whether Wikileaks constitutes a true member of the press remains to be judicially recognized/established), it seems reasonable to conclude that the defense of necessity might meet with some success in the right forum (probably not within the military judicial system, of course, given the prevailing right-wing, law and order mentality of most military personnel).  But simply getting any jury or panel to receive that special instruction before deliberations, even if ultimately rejected, would be itself a victory for our system of government by inserting a balance of powers between the legislature (which has a strong self-interest in criminalizing the disclosure of its own conduct) and the courts, who alone can constitutionally check Congress’ own self-serving legislation if not vetoed by the President, or if such veto were overruled.
     
    Obviously, the value or danger to the society/nation of an actor’s disclosure of classified information would be a question of fact for a jury/panel, thus precluding summary judgment motions and decisions by judges as questions of law.  However, I can’t help but conclude that a “necessity” defense, even if unsuccessful in cases such as Manning’s (or Snowden’s) might actually balance the scales of justice by allowing the public, represented by and through the jury/panel (in true “common law” tradition), an opportunity to examine and potentially veto via acquittal a sovereign’s oft-self-serving claim of national security—which “claims” have historically been the key buzzwords underlying every form of tyrannical leadership.
     
    Responsible Americans should be very concerned about the recent crackdown upon alleged whistleblowers seeking to disclose to the American people their government’s misconduct (which does in fact occur, with every government).  But they should be equally concerned about the risks to national security that could be caused by traitors who seek to disclose secret information for the purpose of negatively affecting national security.  Obviously, successfully arguing the “necessity” defense during both the merits and sentencing phases of trial would go a long way towards gauging and judging not only the accused’s conduct but also their motivation (again, successfully focusing the fact finder’s consideration on matching, or at least considering both the “actus reus” and the “mens rea” under the totality of the circumstances approach) and pull the focus away from a pro-government examination of only the accused’s conduct alone during the merits with consideration of their purpose only coming, if at all, during sentencing.  In the right cases, “necessity” can and should be a defense to certain instances of espionage, on the merits and not just at sentencing.  This is especially true where those “right cases” arguably serve an immeasurably valuable public service such as for example, Daniel Ellsburg’s Pentagon Papers, or Snowden’s conduct vis a vis the NSA to the American’s sense of individual security and trust in the government’s attitude towards its own citizens privacy, vice Manning’s, which didn’t resonate nearly as personally or as passionately with Americans, and arguably served only to feed a confused kid’s ego in search of greatness, and now…..an attempt to get a free sex change courtesy of the tax payers.
     
    Thoughts?    

  28. Contract Lawyer says:

     
    Thoughts? 
     
     
     
    I think they ought to give Snowden the sex change and put him in the same cell with Chelsea Manning.
     

  29. RKincaid3 says:

    SUSTAINED, Counsel! 

  30. Joseph Wilkinson says:

    R(obert?)Kincaid – “Necessity” on this level would not work.  You’ve probably run across U.S. v. Huet-Vaughn, 43 MJ 105, in the past…a reserve officer, on her own personal analysis, decided that Gulf War I was illegal, so that she quit her unit (and was convicted of desertion with intent to shirk).  The case is a tour de force of this species of argument – “I was just disobeying illegal orders – I was trying to avoid the greater evil of future war crimes – the court has to decide the legality of the war” etc. etc.  As the court said,
    “To the extent that CPT Huet–Vaughn quit her unit because she felt it was necessary to avoid a greater evil, the proffered evidence was irrelevant because it did not support a ‘necessity’ defense. When ‘justification’ or ‘necessity’ are asserted as defenses, the evidence must tend to show that the accused had no alternative but to break the law. The defense is not available where the accused’s purpose is to cause a change in government policy…” (The judge would not even allow her to introduce evidence of possible future war crimes and the CAAF upheld the ruling.)
    Incidentally, the Military Law Review printed an article on the defense of necessity in 1988 – 121 Mil L Rev 95 (the article proposed a working definition).   Part III of the article gives a history of the defense as it has occasionally applied in the military, and requiring the harm to be prevented to be “immediate and impending.”  I doubt you could squeeze Manning’s actions into that under any theory that has ever been allowed.