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You are here: Home / Foreign Affairs / Military / Chelsea Manning / Manning Trial Update and Open Thread

Manning Trial Update and Open Thread

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This post is in: ,

I would have posted something yesterday, but I was busy having a tornado shelter installed in my garage.

Again, for the record, I have consulted with Attorneys who practice at the military bar, both locally here in OKC and via email to others.  None of them are associated with the case in any way.  Any errors in my statements are mine and mine alone.  I try very hard to get what they tell me correct, but there’s a reason they are the lawyers and I am the grunt.

Both the Trial Counsel (Prosecutor) and the Defense rested their sentencing cases and rebuttal witnesses for sentencing yesterday.  Today, Judge Lind begins her deliberations on the question of sentencing.  She could conceivably deliver the sentence at any time.  Unlike US Civilian courts, where sentences are passed down for individual charges and are served either concurrently or consecutively, military sentencing is done as a single composite sentence for all charged offenses.  The Defense, led by Attorney David Coombs, recommended a sentence of no more than 25 years, based upon the idea that some of the classifications of the documents that Manning leaked would expire in 25 years.  The Trial Counsel has recommended a sentence of 60 years.  Several witnesses testified last week in classified sessions about known damage caused by Manning’s actions.  These witnesses included the head of the Joint IED Defeat Organization, the two former military attaches to the US Embassy in Pakistan, the Chief Information Officer for the State Department, the Director of the State Department’s group that deals with political dissidents in other countries, and a couple of other people.  Judge Lind accepted much of the testimony, but also disallowed some of it as either being irrelevant or speculative.  As I had noted in an earlier thread, many defense lawyers at the military bar had speculated that the sentence would be somewhere in the 10 to 20 year range.  When I asked about Coombs’ sentencing case for 25 years or less, it was suggested to me that perhaps something came up in the classified portion of the sentencing hearing that is particularly bad for the defense.

A quick brief on military sentences and appellate procedures–any sentence of less than 10 years will be served at a regional confinement facility.  Any sentence in excess of 10 years will be served at the US Disciplinary Barracks at Fort Leavenworth, KS.  PFC Manning has already been awarded 110 days of credit for the unnecessarily harsh conditions which he experienced during part of his stay in the Quantico Marine Base Brig.  Additionally, he will receive credit on a day for day basis for the time that he has spent in pre-trial confinement since his arrest in May, 2010.  Finally, he will receive 5 days of good-time credit each 30 days that he serves his sentence on good behavior.  This works out to approximately 60 days per year sentencing credit.  Assuming that the sentence includes a punitive discharge or a year or more of confinement, it will automatically be docketed for appeal with the Army Court of Criminal Appeals, under Article 66, UCMJ.  The ACCA may, at their sole discretion review the verdict or the sentence for factual or legal sufficiency–they can throw the whole case out if they believe that the Government didn’t prove the case, in other words.  They may reduce or delete the sentence, but not add to it.  Additionally, the case will automatically be docketed with the Army Clemency and Parole Board, a board whose sole responsibility and authority (also unreviewable) is to determine whether or not a court-martial sentence can be reduced in accordance with the needs of the Army, and lastly (although this will happen first) is the clemency plea that will be attached to the Convening Authority’s action.  Any findings and sentence at a General or Special Court-Martial is subject to approval and execution by the Convening Authority who initiated the charges, and under whose command the accused serves.  The Convening Authority may, at his (it’s a male General Officer in this case) sole, nonreviewable discretion, approve the findings or sentence in whole or in part, and may reduce or delete the sentence as he sees fit.  He may not increase the sentence under any circumstances.  Once ACCA issues their ruling then either party may appeal to the Court of Appeals for the Armed Forces.  CAAF can review under the same terms as ACCA, or they can refuse to hear the case.  If CAAF reviews, that opens the door to SCOTUS review, but if CAAF refuses, then that forecloses review by SCOTUS.

All motions, rulings, and evidential documentation associated with the case has been made available here.   Also, there are unofficial transcripts available here.

Reader Interactions

52Comments

  1. 1.

    Just Some Fuckhead, Thought Leader

    A quick brief on military sentences and appellate procedures

    Very good information – thank you!

  5. 5.

    Calming Influence

    Really glad to hear you’re installing a tornado shelter.

    Manning may be pretty screwed up, and may have taken it too far, but leaking that video of the helicopter gunships casually blowing apart a van with a child in it was the right thing to do.

  7. 7.

    PIGL

    @Cacti: Is this the only way you can get an engrossed peepee for the solitary sexytime? Because they have pills for that nowdays, you know? It is not necessary to embarrass a planetful of stangers by farting copiusly and wetly in the elevator.

  8. 8.

    Cacti

    @Calming Influence:

    but leaking that video of the helicopter gunships casually blowing apart a van with a child in it was the right thing to do.

    I’m still waiting for someone to explain what whistle he was blowing when he leaked personally identifiable information on 74,000 US military personnel.

  9. 9.

    Cacti

    @PIGL:

    Is this the only way you can get an engrossed peepee for the solitary sexytime? Because they have pills for that nowdays, you know? It is not necessary to embarrass a planetful of stangers by farting copiusly and wetly in the elevator.

    Your little tin jesus is a narcissist who hurt the United States.

    Said so himself.

  10. 10.

    srv

    Groklaw announces they can’t operate under the jackboot of Obama:

    So. There we are. The foundation of Groklaw is over. I can’t do Groklaw without your input. I was never exaggerating about that when we won awards. It really was a collaborative effort, and there is now no private way, evidently, to collaborate.

    I’m really sorry that it’s so. I loved doing Groklaw, and I believe we really made a significant contribution. But even that turns out to be less than we thought, or less than I hoped for, anyway. My hope was always to show you that there is beauty and safety in the rule of law, that civilization actually depends on it. How quaint.

  12. 12.

    MikeJ

    @Calming Influence:

    but leaking that video of the helicopter gunships casually blowing apart a van with a child in it was the right thing to do.

    Of course that was only leaked by accident. From what I understand he didn’t know or care what he was leaking, just indiscriminately copied files with no concern for what they were. He could have done something worthwhile, but didn’t even try.

  14. 14.

    Soonergrunt

    @Paul in KY: Both Boyce and Lee, the Falcon and the Snowman respectively, were sentencted to 40 years and paroled after 24. Almost all of the Johnny Walker Ring conspirators except for Walker’s son are serving Life sentences. John Walker Sr, supposedly has stage IV throat cancer and has been denied compassionate release. His scheduled parole date is in May, 2015 (if he lives that long.)
    Wikipedia was the source for all of this.

  16. 16.

    Calming Influence

    @Cacti: @MikeJ: I don’t give a fuck what motivated him.

    …leaking that video of the helicopter gunships casually blowing apart a van with a child in it was the right thing to do.

    I don’t give a fuck why he did it, I don’t give a fuck what else he did, and whether he spends the rest of his life in prison because of it.

    …leaking that video of the helicopter gunships casually blowing apart a van with a child in it was the right thing to do.

  18. 18.

    sharl

    I posted the following in comments over at TBogg’s place (under my nym d’FDL), fwiw:

    An all-too-rare effort to provide a big-picture view of the current security-vs.-open access controversies has been published by freelance journalist Quinn Norton, who generally works the hacker/crypto/Anonymous beat (and who tends to be sympathetic with their views, if not always with them as individuals, e.g., Assange).

    Bradley Manning and the Two Americas is what is called these days a “long read” – it says 21 minutes at the top of that post (how they arrive at such estimates, I do not know). If you are offended by the concept of ‘an American Empire’ and find the term unacceptable, the post will likely rub you the wrong way.

    For my part, I think it’s worth trying to understand where thoughtful proponents of these acts of rebellion are coming from, and I found this article helpful. Other than maybe giving social media a bit more credit than it deserves for its role in how the Arab Spring unfolded, and despite not giving enough attention to the fear-driven political power of Team Ozzie-&-Harriet (although then it would be a REALLY long read), I think she laid the big issues out fairly well. As always, YMMV.

  21. 21.

    Keith G

    @sharl: Thanks for the link. Your assessment seems to be about right. This is definitely a piece with a point of view. But importantly, it helps us remember what many critics seem to not recall: This episode did not happen in a vacuum. This fact does not make behavior like Manning’s above reproach, but it does make it more understandable.

  22. 22.

    max

    Again, for the record, I have consulted with Attorneys who practice at the military bar, both locally here in OKC and via email to others. None of them are associated with the case in any way. Any errors in my statements are mine and mine alone. I try very hard to get what they tell me correct, but there’s a reason they are the lawyers and I am the grunt.

    You did fine! Thanks!

    When I asked about Coombs’ sentencing case for 25 years or less, it was suggested to me that perhaps something came up in the classified portion of the sentencing hearing that is particularly bad for the defense.

    Uh, yeah. The evidence that Manning was doing some form of espionage is near zilch, so I wonder what that is about.

    At any rate, he ought to get about 5-10, considering, but I’m sure he’ll get something a much much worse.

    max
    [‘They’d have understood it if he was taking money from the Chinese.’]

  23. 23.

    Mnemosyne

    @Keith G:

    I don’t have a problem with Manning receiving a more lenient punishment than others who have done similar things because, twisted as his reasons were, he did seem to do what he did out of misplaced idealism rather than for money or other rewards.

    But … he still betrayed the oath he took when he joined the armed forces. About five years (including time served and time off for good behavior) along with a dishonorable discharge and denial of VA benefits seems about right to me.

  24. 24.

    Mnemosyne

    @max:

    Uh, yeah. The evidence that Manning was doing some form of espionage is near zilch, so I wonder what that is about.

    I’m guessing that at least some of Manning’s information actually did make its way into al-Qaeda’s hands — that’s the problem with making that information completely public, it lets the bad guys look at it, too. Even though that was not the intended result, it’s something that the court would probably think Manning should have foreseen before he did the document dump, which is why he would get a few years added on.

  28. 28.

    Christopher Mathews

    Thanks for the update, SG.

    Just to clarify: the route the case will follow runs from the trial court to the convening authority, who will decide what portions of the findings and sentence of the trial court will be approved; and then to the Army Court of Criminal Appeals (ACCA), if the *approved* sentence includes a punitive (bad-conduct or dishonorable) discharge and/or confinement in excess of one year.

    The ACCA may approve the findings and sentence in whole or in part, or may return the case to the convening authority with instructions for correction of any legal errors. As SG said, any post-trial action may decrease the severity of the punishment; it cannot add to it.

    Assuming the ACCA at some point affirms the conviction, Manning may petition the Court of Appeals for the Armed Forces (CAAF) for review; and if they take his appeal but affirm the conviction, he may seek a writ of certiorari for review by the Supreme Court. These are discretionary reviews, however; Manning does not have an appeal as of right beyond the appeal to the ACCA.

    The government, on the other hand, can certify an issue to CAAF, meaning that it has an automatic right to appeal an adverse decision from the ACCA. The decision to certify an issue will be made by The Judge Advocate General (TJAG) of the Army. If she is confirmed by the Senate, the Army TJAG as of October 1, 2013, will be Lt Gen Flora Darpino.

    The clemency process is conducted separately from these judicial reviews.

  29. 29.

    Betty Cracker

    @PopeRatzo: And homophobic, autocratic prick Vladimir Putin agrees with those who view Mr. Snowden as a “fighter for human rights,” which only proves that these “nyah-nyah” statements are kinda pointless, huh?

  31. 31.

    burnspbesq

    @max:

    so I wonder what that is about

    Obviously pure speculation, but if I had to guess, I’d guess it had something to do with the testimony from a member of Joint Team Defeat IED. If Manning leaked (maliciously or inadvertently) info about how we are armoring our vehicles to deal with the IED threat, and if there were any evidence that the bomb-makers changed their designs or tactics after that information became public knowledge, that would be a very big fucking deal.

  32. 32.

    burnspbesq

    Also worth noting on the military justice front, a six-member jury has been empaneled to hear the sentencing phase of the Bales case. Recall that he pled guilty in order to take the death penalty off the table. Unfortunately, dropping him off unarmed in Kandahar is not a punishment the jury can impose, so I guess we’ll just have to hope for life without parole.

  34. 34.

    burnspbesq

    @PopeRatzo:

    it’s worth noting that John Yoo agrees with those of you who support the surveillance state.

    That’s hardly worth noting. Yoo is a clown, and his views on this subject have been known for a very long time.

  35. 35.

    Lawrence

    So when will we be seeing the courts martial and extradition to Iraqi jurisprudence of the asshole gunship crew from collateral murder?

  36. 36.

    Cacti

    @Lawrence:

    So when will we be seeing the courts martial and extradition to Iraqi jurisprudence of the asshole gunship crew from collateral murder?

    You mean the ones who shot that nice fellow with the RPG launcher?

  37. 37.

    gratuitous

    @Lawrence: How about “never”? Is never a good time for you? I’m not sure what the military rationale is for it, but I’m pretty sure “lawful order” figures in there somewhere.

    As for what was in the Manning Dossier of top secret, super-duper classified, never see the light of day documents, for some reason I suspect the substance of the documents wasn’t much of a secret from our terrorist enemies, but it sure as the world was a secret kept from the financers and body suppliers of our military’s adventurist activities (meaning we the people). I’d guess the Iraqi people knew that the gunship blew a bunch of civilians to Kingdom Come; it was just supposed to be a secret from the people paying for that massacre.

  41. 41.

    Lawrence

    @gratuitous: I didn’t recommend action against the individual who approved the shoot. He was acting on the obviously false information the Apache crew gave him. An order to kill civilians is an unlawful order. If you watched the footage you will notice the constant fabrication about the civilians carrying rifles and RPGs. They weren’t. The men in that gunship are either too blind to fly, too incompetent to read their instruments or just a couple of sadistic war criminals.

  43. 43.

    Cacti

    @Lawrence:

    You must mean the long lens camera the photographer was carrying which looks nothing like an RPG.

    You should get in touch with Julian Assange and correct him, since he admitted on Colbert that there was one person on the ground with an RPG and another carrying an AK-47.

  44. 44.

    Soonergrunt

    @Cacti: To say nothing of the fact that the “collateral murder” video was very heavily edited. Something like 40% of it was cut out. Parts at the beginning of the engagement, and parts in the middle.
    No matter what might have happened (and I wasn’t there, so I don’t know) I DO know that no court in the western world, civilian or military would consider that reliable evidence upon which to charge.

  45. 45.

    Soonergrunt

    @Soonergrunt: Oh, and Manning took that file from a folder on the SIPR server that was labeled “JAG” according to testimony in the Article 32 investigation. So it was under investigation at the time.

  46. 46.

    dollared

    @Soonergrunt: Are you trying to say that that was a justified action? The very best you can say is that it was poor judgment by the shooter, and that every person in the entire political process that put that shooter in Iraq at that moment with that armament should be put in prison. But please do not defend that state murder.

  47. 47.

    Soonergrunt

    @dollared: No. I’m saying that you don’t know what happened there, that the video that you’ve seen doesn’t show what most people think it does because it was intentionally and selectively edited to produce outrage (by an organization that claims to exist to get the truth out to the world), and that video was the subject of an active criminal investigation by a military force that prosecutes people suspected of war crimes and has prosecuted and imprisoned a lot of people for criminal conduct in the war zone.
    John Hatley, multiple counts of murder
    Michael Behenna, assault, murder
    The Maywand District Murders, aka the “Kill Team” Eleven personnel investigated, charged, and convicted at court-martial of various offenses from Wrongful Use of Controlled Substances, to Murder
    Mahmudiyah killings Five men convicted at court-martial of various crimes ranging from Dereliction of Duty to Rape and Murder, one former Soldier convicted in Federal District Court of Rape and Murder
    And of course, Abu Ghraib personnel convicted or torture, abuse, maltreatment, conduct predjudicial to good order and discipline.
    Oh, yeah–the Kandahar Massacre, in which SSG Robert Bales has already plead Guilty, and the court-martial is only meeting to determine whether or not he’ll be eligible for parole in multiple murders. He plead Guilty, so the death penalty is not possible, because the UCMJ forbids capital punishment without both a unanimous verdict and a unanimous sentence from a Panel of Members.
    We don’t know why the Army didn’t prosecute the crew of the Apache for those actions, but I can tell you that intent is an element of most crimes under the UCMJ and the difference between the mistaken targeting of a camera crew and the correct engagement of people who may be pointing a missile launcher at you is that one is a horrible mistake, the other might get you an award, but neither is a crime.
    As for persons in the political process, there is no mechanism under either military or civilian law for them to be tried by court-martial. The proper course of action for Bush and Cheney was to impeach them for high crimes and misdemeanors and to try them in the US Senate, and for members of the President’s cabinet to indict them and try them in US District Court. This course of action may be legally open but is probably not politically possible with respect to Bush and Cheney today.
    I have no control over whether or not that happens.

  48. 48.

    Arclite

    @Cacti:

    I wonder if he regrets being a useful idiot for wikileaks.

    He outed himself. He’s only got himself to blame.

    If I were to steal a bunch of classified docs and have them dumped on the internet, I sure as hell wouldn’t be bragging about it with someone over chat client.

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