In what has to be the least surprising military justice story of, well, ever, the Commanding General of the Military District of Washington has referred all charges against PFC Bradley Manning to trial by General Court-Martial
The most serious of these charges is a specification of Aiding the Enemy, which has been referred for a potential life sentence. A judge will be chosen, and then will begin to hear motions from both the Accused and the Government. All those motions that one would expect, such as the inevitable motions for sentence credit for pre-trial confinement and for confinement against policy and any other such, including petitions by the Accused for various things such as assignment at government expense of certain experts, formal demands for any exculpatory information and so forth, voire dire parameters and so on will be heard then. That Judge will set a trial date, and at some point in the future, selection of a jury, called a Panel of Members will begin. I have no information at this time as to whether or not PFC Manning will avail himself of his right to have Enlisted representation on his panel. A couple of Lawyers of my acquaintance are in disagreement as to whether or not to go this route. One believes that it depends on the case, the other believes that since the Enlisted will be at least Sergeants First Class (E-7) , that nothing good can ever come of having career NCOs on the panel, especially when following orders or military bearing or personal discipline may be implicated by the charges. “First Sergeants don’t like screw-ups”.
A couple of notes here to explain some quirks about Courts-Martial (yes, that is the proper plural): First, this Court-Martial does not actually exist yet as a legal body. It has to be convened first, which is why the Commanding General is called the Convening Authority. That is why there was no Military Judge to whom PFC Manning could complain about the conditions of his confinement at MCB Quantico. It’s not like a civilian court where a Lawyer can go to a Judge and make complaints to force the Government to do something. Up until the Court Martial is actually convened (the appointment of a Military Judge generally being the point) the Military Judge has no authority over the case because Good Order and Discipline, the very reason for the Military Justice system in the first place, is under the responsibility and authority of the Commander. Also, there is a special kind of plea bargaining called a pre-trial agreement available to military Accused. In this PTA, the Accused will agree to maximum limits on potential sentence in exchange (usually) for giving up some rights to appeal. Not all appeals rights may be abdicated, but some can. If such a PTA is in place (and all plea bargains are made with the Convening Authority, not the Trial Counsel (prosecutor)) then the Accused may plead Not Guilty and take his chances. Any charges for which he is acquitted would not be punished, and any charges convicted would be subject to limits of no more than specified in the pre-trial agreement. If such a PTA exists, that fact will be kept secret until after the guilt phase of the trial so as not to prejudice either the Military Judge or the Members Panel.
If anyone reading this is a member of the military bar, please feel free to correct me. I’m pretty sure I’ve missed some important aspect or another.
O/T–One of my favorite actors of all time, Ben Gazzara has died. He was 81 years old.
JPL
Manning should have never been clearances but he was. He abused his clearances so there’s that.
Jenny
He can’t be guilty, he’s too cute ♥♥♥♥
Villago Delenda Est
This jibes with every bit of conventional wisdom I’ve ever heard about courts-martial for enlisted personnel. You want your panel to be made up, ideally, of company grade officers. Like the Government will let THAT happen. The Government will want that senior NCO, who will take a hard line in nearly all cases. They’ll want some field grades, too, preferably combat arms types.
Mike in NC
My wife’s dad was the Provost Martial of the Military District of Washington. He retired as a colonel in 1965, but the biggest job he ever had to deal with was JFK’s funeral. Holy crap.
General Stuck
This post ought to put the kybosh on all the bloggy kumbaya vibes. It was only a pipe dream anyways.
Villago Delenda Est
@JPL:
When you’re desperate for warm bodies to staff the SCIF, corners are cut, yadda yadda yadda.
Manning is just a symptom of a bigger problem.
Soonergrunt
@General Stuck: I don’t know. The last couple of posts I did on this subject had pretty polite comments sections. I try to be straight forward and even-handed. I think people appreciate that. I hope they do, anyway.
@Villago Delenda Est: True. And while there should be some mitigation, I still believe that PFC Manning is responsible for his actions, and if convicted should be held accountable. I hope that he doesn’t spend one more day in confinement than necessary, and I hope that he gets fair credit for Quantico, but (and I’m not on the Members Panel so I can believe this) I think he’s guilty of at least some of which he’s accused. I have a real problem with the Aiding the Enemy spec, but I haven’t seen how the Government intends to prove the elements.
JPL
@Villago Delenda Est: Although I totally agree, he also hurt others serving. If they find him guilty maybe there will be enough evidence to look at the chain of command … probably not but one can dream. Not all but some are led by family members to join the services because they are heading to a road of destruction. That was true in the sixties and it’s true today. You do not join just because you are some type of glorious patriot.
General Stuck
@Soonergrunt:
Your posts on this topic are excellent, and yes, even handed. I probly am being too cynical, maybe the worm has really turned .
anna missed
Maybe he’ll get the same court martial panel as the Haditha murderers.
Villago Delenda Est
One thing working against Manning, panel-wise, is that there are proportionally fewer company grades in the DC area than all those field grades (O-5s and O-6s, mostly) commanding desks in the Pentagon.
Panel will probably be stacked with serious lifer types enlisted or officer who have been highly socialized in the culture, thus predisposed against Manning.
It indeed will be interesting to see how the Government will pull off the Aiding the Enemy spec. That implies a direct, demonstrable act, not some vague “he put all this shit out there!” sort of thing where one has to just imagine the damage with no specificity at all. May not fly unless they can demonstrate a chain of events (say, like giving the Brits the back door key to West Point).
JPL
@Villago Delenda Est: Okay and the point is? I don’t see the point. I heard from folks that knew him that are not lifers and they were not happy. just sayin
General Stuck
First Cliff Robertson, and now Ben Gazzara. Both long time favs of mine, part of what I called The Beatnick Actors, along with John Cassavettes and upstarts like Seymour Cassell. They did some great art house movies together. Rip Ben. Say hi to Cliff and John for me.
Omnes Omnibus
@Villago Delenda Est: Not a military lawyer, but my civilian experience suggests that some overcharging took place. Civilian prosecutors will try to charge as high as they can possibly justify. It gives them “hand” during the plea process.
SiubhanDuinne
Thanks for posting the Ben Gazzara news, I hadn’t seen that elsewhere. Good actor. RIP.
And I’m of an age that likes to keep up with the obituaries.
Villago Delenda Est
@JPL:
Oh, I have no doubt about that, I was just commenting on the pool of jurors available for the court-marital, that’s all. Military District of Washington is heavy on brass, which will undermine the usual conventional wisdom (go heavy on junior officers if you can) on the raw panel makeup. The voir dire process should be interesting in and of itself, since the defense won’t have the conventional pools that you’d have on any post with a troops stationed there would have. If Manning’s counsel is civilian, without the JAG template to steer their approach, they’ll use more conventional jury selection strategy without regard to the military veneer. Might be the best approach.
Sophia
Oh, Road House. Crossing my fingers for Sam Elliot tonight.
WaterGirl
Update from Cole on the dad thread and new dad post up top.
Brutusettu
Lynndie England et al. and the bigger torture enthusiast in the executive branch acted like surreptitious al qeada recruiters. But we need to look forward, not back.
And there’s this Greenwalk post for wrong lizardphobes:
“ACLU sues Obama administration over assassination secrecy”
MikeJ
This is technically true in civilian courts too. The prosecutor doesn’t hand down sentences, and judges can (and do) turn down plea bargains.
Soonergrunt
@anna missed: Impossible because they were Marines.
And if you wonder (or care) about why most of them were acquitted, it was primarily because they followed standing procedure at the time of the event.* The squad leader’s orders to kill everybody were illegal, but nobody believed that he meant it in any other way except slang.
There’s a vast gulf between what he was charged with, and what they were able to actually prove. That guy’s a shitty leader, but that’s not the same as having criminal intent.
*That procedure has since changed.
Soonergrunt
@Villago Delenda Est: Manning’s lead counsel is a civilian who is a LTC in the Army Reserve. Jeffrey Coombs. Supposed to be very highly regarded. Teaches Trial Defense Practice at the Army Legal Center in his current AR assignment. He also has two military Defense Counsel detailed. A MAJ named Kemkes, and a CPT.
burnspbesq
@Brutusettu:
None of which is remotely relevant to any issue in PFC Manning’s upcoming court-martial.
If you have a point to make, feel free to make it. But don’t waste my time with this trash.
Soonergrunt
@MikeJ: But in this case, it’s more like making a deal before the Jury is selected and seated…with the Governor.
The Convening Authority may, at his or her sole (and non-reviewable) discretion, reduce or delete (but not add to) any part of the sentence that the Military Judge hands down.
Soonergrunt
@Brutusettu: That’s interesting.
PFC England and the other personnel from that unit have served their sentences, with the exception of the two (Graner and Frederick) who are still serving theirs.
As for the “torture enthusiasts” at political levels, they are not subject to Courts-Martial as they were not members of the military at the time.
The prophet Nostradumbass
@Brutusettu: Reading this blog is Serious Business for some Serious People who don’t have time to waste, particularly burnspbesq. Please keep that in mind for future reference, and conform your comments to burnspbesq-approved ideas. Thank you.
Omnes Omnibus
@The prophet Nostradumbass: Kind of unnecessarily being an asshole, aren’t you?
The prophet Nostradumbass
@Omnes Omnibus: I’m the one being the asshole? Anyone who’s reading and commenting on this blog who complains about another commenter “wasting my time” in a self-important manner deserves to be mocked.
Omnes Omnibus
@The prophet Nostradumbass: In this instance, yes, you seem to be the one being an asshole. Just saying. But, whatever…
Jenny
He should be pardoned and awarded the Medal of Honor and Medal of Freedom, and appointed Secretary of State!
IM
I hope the troubled young man can win on mitigating circumstances. The more I heard of him, the more I think the phrase “troubled young man” fits here.
Soonergrunt
@Jenny: He isn’t eligible for the MOH because nothing he did was even remotely physically brave. Assaulting his female co-worker doesn’t count. It wasn’t even particularly morally brave, for that matter. He’s not eligible for the MOF because he’s a serving servicemember. We already have an exceptional SOS.
@IM: Even troubled young men are responsible for their actions.
If he was charged with raping a six year old, you wouldn’t be going on about “troubled young man”, you’d want him to hang. This isn’t shoplifting he’s charged with.
AxelFoley
@Jenny:
I thought my Snark-O-Meter was broked there for a minnit. ;)
Boxer
I’m far from am expert, but from the one court-martial I have served on as a Company grade officer, the PTA was to be voided if the accused plead not guilty. The PTA hinged on the accused maintaining a guilty plea. Otherwise, why not always make a PTA to limit your sentence, then go for broke and plead not guilty, hoping you get off? That would be win/win(ish) for the accused, as even if we find them guilty, it would limit the sentencing.
Additionally, if the accused pleads guilty via PTA, it is the duty of the judge to ensure that they are believably guilty and not just pleading guilty to limit sentences despite being innocent. Say, for example, that a soldier is accused of stealing equipment, but they actually just negligently misplaced it, that could come out during questioning prior to accepting the guilty plea. Even if Manning pleas guilty to aiding and abetting the enemy, which would be foolish I would think, the guilty plea could easily just not be accepted by a skeptical judge.
Frankensteinbeck
@Brutusettu:
This again? They didn’t just lose the first lawsuit, it was thrown out without hearing because what Greenwald likes to call an ‘assassination’ conforms utterly to standing case law on waiving your right to trial.
However, this is a commentary on Greenwald and others who misrepresent this case. It is not a commentary on the ACLU, who are doing their job keeping the law as generous to civil liberties as possible by challenging anything and everything.
Soonergrunt
@Boxer: I believe you are referring to something that military lawyers refer to as a “Care Inquiry”. I don’t know if that’s named for a legal case like US v. Care or short for “Due Care and Consideration” or some such. I know that we saw a Care Inquiry in action during the US v. Lakin trial.
LTC Lakin was court-martial’ed for disobeying lawful orders and missing movement by design because he refused to deploy to Afghanistan under President Obama whom he considered to not be eligible for the Presidency.
He plead guilty to the disobeying orders specs before the trial began. The Military Judge questioned him closely for over an hour, establishing his knowing admittance to having violated every element of each of the charges and specifications. One of the lawyers I’ve chatted with explained that it was “the beauty of the Care Inquiry that it pretty much foreclosed the possibility of appeal” on those charges and specs. And this was a Defense lawyer I was talking to.
Soonergrunt
@Boxer: I see exactly what you are saying. That’s why I’ve asked for anybody who is a member of the bar to correct me.
I can see a situation where one will forgo some of one’s appeals rights in order to limit sentence in a longshot case. Of course, in those instances, I don’t see why the government’s lawyer wouldn’t advise the CA to not take the deal. If their case is that good, then just go for it and get the full sentence post conviction.
Rawk Chawk
Could we get a front pager without an agenda to track the Manning Show Trials?
Also, too: Count me among those wondering why where Manning is concerned, the CIC isn’t ordering the military to “look forward, not back?”
Soonergrunt
@Rawk Chawk: And what agenda do you perceive I have, and where is that delineated in the post? Just because I’m not lining up with you to give Manning a handjob and a medal does not mean that I am treating him unfairly. It occurs to me that your invocation of “show trials” means not that you want a front pager without an agenda, but a front pager WITH an agenda, specifically yours, to cover this. May I suggest that you contact John via email (link in the upper corner) to complain or that you decamp to Firedoglake, wherein you will find people who don’t know what the hell they’re talking about, but have the right ideological bent for you.
Try as you might, you cannot get around the fact that he is a responsible adult and like Martin Luther King said, must accept legal responsibility for his actions with the moral. If you don’t believe that, you must (if you have any intellectual consistency at all) believe that he is not some kind of hero whose standing up for truth, justice, and the american way but some poor deluded individual who cannot tell right from wrong, and thence has no heroic quality because he couldn’t make a knowing decision. You can’t have it both ways if you are intellectually honest.
As to your second question, you should direct that to ph: 202-456-1111
email:[email protected]
snail mail:
The President
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Perhaps you’ll find your answer there.
otto
If someone is going to participate in anything that is like civil disobedience, then they and their supporters need to understand that civil disobedience leads to negative outcomes for the individual, but it spurs more positive outcomes for others.
I’m all in favor of challenging the authority, and of doing whatever I can to create a more transparent government, but I also understand that if I intentionally break rules that I will be held accountable.
Jenny
HA!
And you thought my firebag mockery was over the top.
Go to GOS and there’s a recommended diary nominating Manning for the Nobel prize. And they’re serious!
Soonergrunt
@Jenny: You were mocking? Well played!
I should’ve remembered Poe’s Law.
Grumpy Code Monkey
You don’t get off the hook for robbing a bank by giving all the money to charity.
Whatever Manning’s motives were, violated the law and abused the trust placed in him to safeguard classified information. He would have been regularly briefed on his responsibilities and on the consequences of failing to meet those responsibilities (just losing classified information will get you thrown in the pokey, even if it doesn’t wind up in the wild). Even if he honestly believed he was striking a blow for truth, justice, and the American way, he had to know that this would be the consequence of his actions.