In the case of the recent commutation of Chelsea Manning’s sentence for releasing secret material to WikiLeaks, Lawfare presents both sides of the controversy, on the one side their own Benjamin Wittes and Susan Hennessey, on the other Cully Stimson at The Daily Signal. First up will be Cully:
To some, Manning was a whistleblower who deserved a pardon, or at least a sentence commutation. Indeed, one of the videos Manning gave to WikiLeaks showed U.S. military personnel in Iraq engaged in a deeply troubling, if not illegal, shooting incident.
But there was so much more to Manning’s crimes than exposing that killing.
By downloading hundreds of thousands of secret documents about some of the most sensitive information related to the war effort in Iraq and Afghanistan, by disgorging highly sensitive diplomatic emails for the world to see, and recklessly exposing top secret files of terrorist detainees we held at Guantanamo, Manning betrayed the oath to our country, armed our enemies with information that they could only dream about acquiring, and forced our government to expend untold hours and money to minimize the damage inflicted by this criminal conduct.
Benjamin and Susan’s position, which they originally wrote about last year:
There were members of the national security community who viewed our position as somehow disconsonant with our broader tendency to support more, rather than less, robust security policies and laws. A different part of the ideological spectrum criticized us for arguing for Manning’s clemency in the context of arguing against a pardon for Edward Snowden.
We think both of those lines of criticism miss a few important distinctions, the most central of which is that national security is about real security, not simply vengeance. Moreover, Manning’s case is not like Snowden’s. And critically, Manning did not get a pardon. The distinction between a pardon (which voids the underlying conviction) and a commutation (which merely lessens the punishment) is important here. As we argued then:
If there is a case in which to exercise executive prerogative to heal a rift regarding the treatment of self-proclaimed whistleblowers, Manning’s is infinitely more deserving than Snowden. We do not argue that Obama should consider a pardon: Manning committed serious and consequential crimes and was properly convicted. But the President should consider commuting the sentence either to time served or to some reasonable period of additional years. Manning has been imprisoned for more than six years; she could be eligible for parole in the next several years with good behavior. She clearly presents no ongoing security risk and it’s hard to imagine how her circumstances would inspire others in the military to believe they can disclose classified information without consequence.
I’ll admit that I haven’t paid much attention to this case, whch appears to involve the release of thousands of pages of information, including at least one incident of a war-crime. And if you stopped reading right now, I wouldn’t blame you, as I don’t know much.
So I’ll make this march. On the one hand, we have potential and real damage to the national security apparatus, while on the other we have what appears to be at least one war crime, possibly being covered up. Cully makes this point:
Under the law, military trial judges are required to take into account all aggravating and mitigating evidence before sentencing the accused.
And while Cully makes this remark in the context of the gender identify disorder from which Manning suffered at the time of the crime, I am going to switch the context to the mitigating circumstance of the revelation of at least one concealed crime, as Cully admits. But I think there’s a wrinkle here: the sentencing is at a fixed point in time. But as time passes, circumstance changes. Perhaps the former President (as it’s now afternoon on Inauguration Day, so now we have a President Trump to endure) judged that the crime revealed was far more severe than originally thought; perhaps other important data came to light. The point is, if the evaluation of the importance of the data changed, then the judgment of the trial judge may become obsolete and require modification.
A second wrinkle, independent of the changing context, is this: the judge is a military judge, and is thus constrained to view the incident through military eyes, and apply military sector standards to the incident. However, the military is subordinate to the government, because the government is charged with the overall welfare of the country – not the military. The reason we have a President, as constrained as he (or she) is by Constitutional checks and balances, is to make evaluations for the good of the entire country. If the evaluation comes out that Manning did some good for society, balanced against the damage also done, well then perhaps commutation is the proper action to take. She was sentenced to 35 years, but Cully claims she would have been eligible for parole in the next few years. She still bears the stigma and dishonor of a 35 year sentence.
I also have to take issue with this statement:
By commuting Manning’s richly deserved sentence, Obama is sending a horrible message to dedicated U.S. public servants, in and out of uniform, that honoring their responsibility to keep national security secrets from the public eye isn’t all that important.
This is a slap in their face.
There’s certainly a message here. It’s that awareness of a possible war crime requires action. Perhaps Manning overdid it with the amount of data released – I won’t try to judge. But as Cully notes, a 35 year sentence is more symbolic than real, since parole was anticipated to begin soon. If so, then isn’t that a slap in the face?
Finally – and I hope this is merely an unpleasant and fallacious paranoia – perhaps Obama was concerned about the incoming Administration victimizing Manning. After all, among the more fringe right elements of Trump’s supporters, gender change and release of secret documents are not going to engender any positive feelings – and I’ve noted a certain lack of balanced judgment on their part; they prefer the mob with flaming torches approach. This may be Obama’s attempt to put Manning beyond the legal reach of the fringe-right.
