Denise Lind

Bradley Manning’s Sentence, Parole and Appeal Implications

CryingJusticeOn Monday I laid out the dynamics that would be in play for the court in considering what sentence to give Bradley Manning in light of both the trial evidence and testimony, and that presented during the sentencing phase after the guilty verdict was rendered. Judge Lind has entered her decision, and Bradley Manning has been sentenced to a term of 35 years, had his rank reduced to E-1, had all pay & allowances forfeited, and been ordered dishonorably discharged. This post will describe the parole, appeal and incarceration implications of the sentence just imposed.

Initially, as previously stated, Pvt. Manning was credited with the 112 days of compensatory time awarded due to the finding that he was subjected to inappropriate pre-trial detention conditions while at Quantico. Pvt. Manning was credited with a total 1294 days of pre-trial incarceration credit for the compensatory time and time he has already served since the date of his arrest.

Most importantly at this point, Manning was sentenced today to a prison term of 35 years and the issue of what that sentence means – above and beyond the credit he was given both for compensatory time and time served – is what is critical going forward. The following is a look at the process, step by step, Bradley Manning will face.

The first thing that will happen now that Judge Lind has gaveled her proceedings to a close is the court will start assembling the record, in terms of complete transcript, exhibits and full docket, for transmission to the convening authority for review. It is not an understatement to say that this a huge task, as the Manning record may well be the largest ever produced in a military court martial. It will be a massive undertaking and transmission.

At the same time, the defense will start preparing their path forward in terms of issues they wish to argue. It is my understanding that Pvt. Manning has determined to continue with David Coombs as lead counsel for review and appeal, which makes sense as Coombs is fully up to speed and, at least in my opinion, has done a fantastic job. For both skill and continuity, this is a smart move.

The next step will be designation of issues to raise for review by the “convening authority”. In this case, the convening authority is Major General Jeffrey Buchanan, who heads, as Commanding General, the US Army’s Military District of Washington. This step is quite different than civilian courts, where a defendant proceeds directly to an appellate court.

The accused first has the opportunity to submit matters to the convening authority before the convening authority takes action – it’s not characterized as an “appeal,” but it’s an accused’s first opportunity to seek relief on the findings and/or the sentence. According to the Manual for Courts-Martial, Rule for Court-Martial 1105:

(a) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule.

(b) Matters which may be submitted.
(1) The accused may submit to the convening au­ thority any matters that may reasonably tend to af­ fect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions.
(2) Submissions are not subject to the Military Rules of Evidence and may include:
(A) Allegations of errors affecting the legality of the findings or sentence;
(B) Portions or summaries of the record and copies of documentary evidence offered or intro­ duced at trial;
(C) Matters in mitigation which were not avail­ able for consideration at the court-martial; and
(D) Clemency recommendations by any mem­ber, the military judge, or any other person. The defense may ask any person for such a recommendation.

Once the convening authority has the full record and the defense has designated its matters for review, Buchanan will perform his review and determine whether any adjustments to the sentence are appropriate, and that will be considered the final sentence. At this point, the only further review is by a traditional appeal process.

Generally, the level of appellate review a case receives depends on the sentence as approved by the Continue reading

The Bradley Manning Sentencing Dynamics

U.S. Army Private First Class Bradley Manning stands convicted of crimes under the Uniform Code of Military Justice (UCMJ). The convictions result from two events. The first was a voluntary plea of guilty by Pvt. Manning to ten lesser included charges in February, and the remainder from a verdict of guilty after trial entered by Judge Denise Lind on July 30.

The maximum possible combined sentence originally stood at 136 years for the guilty counts, but that was reduced to a maximum possible sentence of 90 years after the court entered findings of merger for several of the offenses on August 6. The “merger” resulted from the partial granting of a motion by Mr. Manning’s attorney arguing some of the offenses were effectively the same conduct and were therefore multiplicitous. The original verdict status, as well as the revised verdict status after the partial merger of offenses by the court, is contained in a very useful spreadsheet created by Alexa O’Brien (whose tireless coverage of the Manning trial has been nothing short of incredible).

Since the verdict and merger ruling, there have been two weeks of sentencing witnesses, testimony and evidence presented by both the government and defense to the court. It is not the purpose of this post to detail the testimony and evidence per se, but rather the mechanics of the sentencing process and how it will likely be carried out. For detailed coverage of the testimony and evidence, in addition to Alexa O’Brien, the reportage of Kevin Gosztola at FDL Dissenter, Julie Tate at Washington Post, Charlie Savage at New York Times and Nathan Fuller at the Bradley Manning Support Network has been outstanding.

All that is left are closing arguments and deliberation by Judge Lind on the final sentence she will hand down. So, what exactly does that portend for Bradley Manning, and how will it play out? Only Judge Lind can say what the actual sentence will be, but there is much guidance and procedural framework that is known and codified in rules, practice and procedure under the UCMJ.

Initially, the obvious should be stated, Bradley Manning is in front of an Army court martial process under the UCMJ, and while there is Continue reading

Manning Faces Up to 136 Years in Prison for Alerting You to What Your Government Does in Your Name

Bradley Manning is innocent, according to Judge Colonel Denise Lind, of aiding the enemy.

With this verdict, truly horrible consequences for freedom of speech are averted.

Nevertheless, according to the invaluable Alexa O’Brien, Manning still faces a maximum 136 years for the 20 (out of 22) charges on which he was found guilty. [corrected total number of charges/guilty verdicts]

When Manning plead guilty in February to 10 lesser charges (Lind accepted 2 of those pleas), he said he hoped his leaks “could spark a domestic debate on the role of the military and our foreign policy in general as it related to Iraq and Afghanistan.” For that, the government accused him of being a traitor.

Lind agreed with the government on almost every other issue but that one. And for his efforts, Manning may well spend the rest of his life in prison.

Update: Here’s my longer take at Salon. Note this bit:

There is one more significant detail in Lind’s ruling today. In addition to aiding the enemy, the one other charge she found Manning innocent of involved leaking a video of a civilian massacre in Garani, Afghanstan. While Manning admitted accessing the video, the government insisted he had leaked it months before Manning admitted to accessing the video (and before forensic evidence showed he had). This claim — one Lind said they did not prove — was key to their claims that Manning had planned to leak to WikiLeaks from the start of his deployment to Iraq.

Obama’s Stubbornness and the Risk of Snowden

At the outset of this post, let me lay out my following assumptions (I can’t prove these points, but I suspect them):

  • The documents released so far by Guardian and WaPo — information on the Section 215 program, PRISM, and the PPD on cyberwar — have done negligible damage to our security (indeed, even Sheldon Whitehouse, a big defender of these programs, said the government should have been transparent about them earlier)
  • China already knew the content of Edward Snowden’s public revelations about our hacking into Chinese networks (we know China’s compromises of us, so it is unlikely China, which is more successful and aggressive at hacking than we are, doesn’t know our compromises of it); the revelations on this front so far have served primarily to even out the playing field on mutual accusations of hacking
  • Snowden personally (and his laptops) have information that China and Russia could both find of more use, particularly given that some of our programs targeting them were run out of HI
  • Snowden may also have things that might be of use to others, such as organized crime (If I were planning on longevity and had access, for example, I would take some zero day exploits when I left the NSA, though the street value of them would diminish once NSA had inventoried what I took)
  • The reporting I’ve seen has not confirmed reports that either China or Russia has debriefed Snowden or scanned his computers (indeed, this report on China’s involvement in his departure from Hong Kong suggests they did not talk with him directly)
  • Julian Assange knows where Snowden is, leading to the possibility he has escaped Russia to a country that has not yet been named in reports of Snowden’s escape (named countries have included Venezuela, Cuba, Ecuador, and Iceland)

All of that is a roundabout way of saying that Snowden could do great damage to the US, but may not have yet, and certainly hadn’t by the time he first revealed himself in Hong Kong.

If that’s right, then it seems the Obama approach has been precisely the wrong approach in limiting potential damage to national security. The best way to limit damage, for example, would be to get Snowden to a safe place where our greatest adversaries can’t get to him, where we could make an eternal stink about his asylum there, but still rest easy knowing he wasn’t leaking further secrets. Indeed, if he were exiled in some place like France, we’d likely have more influence over what he was allowed to do than if he gets to Ecuador, for example.

The most likely approach to lead to further damage, however, is to charge him with Espionage. This not only raises the specter of the treatment we’ve given Bradley Manning — giving Snowden Denise Lind’s judgement that Manning’s rights were violated to include in any asylum application — but also easily falls under what states can call political crimes, which permits them to ignore extradition requests. That is, we appear to be pursuing the approach that could lead to greater damage.

By contrast, letting Snowden get someplace safe is perfectly equivalent to letting the CIA off for torture (or, for that matter, James Clapper off for lying to Congress). It’s a violation of rule of law, but it also serves to minimize the tremendous damage the spooks might do to retaliate. Obama has chosen this path already when the criminals were his criminals; he clearly doesn’t have the least bit of compunction of setting aside rule of law for pragmatic reasons. But in Snowden’s case, he seems to be pursuing a strategy that not only might increase the likelihood of damage, but also lets China and Russia retaliate for perceived slights along the way.

All this is just an observation. I believe Obama’s relentless attacks on whistleblowers and his ruthless enforcement of information asymmetry have actually raised the risk of something like this. And he seems to be prioritizing proving the power of the US (which has, thus far, only proved our diminishing influence) over limiting damage Snowden might do.

Update: This fearmongering WaPo article nevertheless quotes a former senior US official admitting that what Snowden has released so far wouldn’t help China or Russia.

A former senior U.S. official said that the material that has leaked publicly would be of limited use to China or Russia but that if Snowden also stole files that outline U.S. cyber-penetration efforts, the damage of any disclosure would be multiplied.

Classification Games Hiding the Afghan Defeat

Amidst all the discussion of the Administration’s crack-down on leaks, two details have made it clear the Administration is using its own abuse of classification to hide reports of our impending defeat in Afghanistan.

Administration leaks to enforce and protect our pro-corruption policy

One of those comes from Sarah Chayes, the former Stanley McChrystal advisor. She was last seen on the pages of this blog complaining about CIA support for corruption in Afghanistan. In a new piece, she offers one of the most interesting takes on the Administration’s pursuit of leaks.

While her main point is that if reporters were as exposed as their sources to legal consequences for leaks, they might better judge the truly important leaks, she throws some fascinating details showing how broken the classification system is.

Far too much information is protected by unwarranted classification. It’s hard to take a system seriously that places so many gigabytes of material that are not critical to national security under the same umbrella as the few nuggets that are. I’ve seen a New Yorker article included among prep documents for a National Security Council meeting stamped SECRET//NOFORN (meaning that only cleared U.S. citizens were allowed to read it).

[snip]

In September 2010, a flurry of coverage in major U.S. newspapers reported a supposed government decision on how corruption in Afghanistan would be handled. Perusing the articles with growing wonder, I looked down at a memo on my desk. Not only were passages quoted from it classified, the document was also watermarked DRAFT. No decision had been made yet because debate on the draft had not even reached the level of Cabinet secretaries. It was a classic Washington case of offensive leaking. For months, I was convinced that the perpetrator was the late Richard Holbrooke, then special representative to Afghanistan and Pakistan. But I kept asking reporters. Finally I traced the leak to a senior White House official, whose career has progressed untroubled.

She makes it very clear what the second example of classification abuse is. While she links to this early September 2010 WaPo article describing a decision to ignore corruption in Afghanistan, in her own account of what happened, she points to mid-September as the period when it became clear top figures in the Administration had bought off on supporting corruption in exchange for “progress” towards wiping out the Taliban.

Effectively, Chayes is suggesting that a top White House figure effectively won the debate in support of ignoring corruption in Afghanistan by leaking a draft classified decision as a fait accompli. Given her suggestion that this person’s career has “progressed,” it’s a safe bet that it is one of the people — like current National Security Advisor Tom Donilan, current CIA Director John Brennan, or current Deputy National Security Advisor Ben Rhodes — who got promoted since this leak.

Chayes doesn’t provide much guidance about which New Yorker article was classified SECRET and used in a National Security Council meeting, but I’m betting it was this Dexter Filkins article that rehearses the same issues of corruption. As I’ve noted, while the NYT (where Filkins had recently departed) only hinted at how badly the collapse of the Kabul Bank implicated Hamid Karzai’s corrupt administration, Filkins provided extensive details. The Filkins article, like the earlier series of articles, arises out of the decision to capitulate to CIA bagman Muhammad Zia Salehi’s blackmail to avoid prosecution.

Salehi telephoned Karzai from his jail cell. “He told Karzai, ‘If I spend one night in jail, I’ll bring the whole thing down,’ ” the Western official recalled.

Out of fear Salehi would “bring the whole thing down,” it seems, the Obama Administration chose to abuse the classification system to ignore — while hiding the true extent of — the corruption of our Afghan partners.

Selective protection of CIA’s efforts to convince our allies to remain in Afghanistan

Meanwhile, one of the things the government convinced Bradley Manning trial judge Denise Lind to keep secret even after it had been inadvertently released once appears to relate to CIA’s efforts to shore up support for the Afghan War among our European allies.

Alexa O’Brien makes a compelling argument that one of the witnesses who will testify to the harm allegedly caused by Manning’s leaks in secret is Robert Roland. She further argues that Roland will testify about 2 CIA Red Cell Memos, one of which strategizes how to ward off political opposition to the Afghan War of the kind that got our coalition partners in the Netherlands ousted (the other, which I wrote about herepertains to concerns that other countries will figure out we export terrorism). The analysis of the memo itself is rather unsophisticated; it argues if we emphasize the benefit for women of our continued presence in Afghanistan and the support one poll showed Afghans had for our presence, it’ll be enough to keep French and German voters in line.

But I guess it is rather embarrassing to have CIA’s reflections, however naive, on how to counter democratic opposition to war out there. And I suppose Roland’s identity might have been protected until whatever reviewer missed it in one of Manning’s defense filings.

At this point, however, both are public. Yet Roland’s identity and the CIA reports are being treated with far more sensitivity than far more damning State reports that will be discussed publicly.

Ah well. The report I want to see is the CIA plan to shore up support for the Afghan war as it becomes more and more clear the war serves only to prop up the crooks the CIA has been bribing for 12 years.

Emptywheel Twitterverse
emptywheel EO 12333, under which NSA conducts most of its spying? OLC ruled that "“An executive order cannot limit a President." http://t.co/Y6LHNv2mIX
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emptywheel Another thing missing from the EO12333 discussion: How George Bush pixie dusted the order, without telling anyone. http://t.co/Y6LHNv2mIX
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emptywheel @Eclectablog Just till Saturday. It's a Halloween costume.
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emptywheel RT @Eclectablog: Republican Mike Bishop, candidate in MI-08, has had a VERY bad couple of weeks http://t.co/0YL9dElpMv
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emptywheel <<<< turning blue holding my breath tho I was wondering what @csoghoian was having so much fun working on. @NateWessler @onekade
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emptywheel @onekade If only some NGO can sic someone like @NateWessler on that issue.
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emptywheel @matthewstoller Don't you say that or Chiquita's big GOP donors will take their bananas and defect to Brazi--oh wait. Too late.
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emptywheel DOJ IG knows how to keep GOP in his camp, releases new report showing ATF/AZ USA failures on investigation. http://t.co/AuaDNi9jHM
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emptywheel As US prepares to withdraw, ISAF decided to start hiding details on ANSF troop capability. https://t.co/BjsPXBeubI (Reup fr @JimWhiteGNV)
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bmaz @kennwhite So, jesus, I have a string of a gazillion UID characters that shows up on my ATT iPhone. Still no good way to get rid of it?
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emptywheel @JimWhiteGNV I hear that'll ruin the rice cooker. @onekade
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JimWhiteGNV @onekade More like Badassmati rice, amirite? @emptywheel
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