WASHINGTON — Let’s puncture a few myths and misunderstandings about Chelsea (formerly Bradley) Manning’s 35-year sentence.
First, the entire Manning case, from start to finish, has nothing to do with the Obama administration’s avid pursuit of leakers. The military courts operate independently of the Justice Department. If the most purebred civil libertarian were president of the United States, the Army would have gone after Manning no less relentlessly.
Manning’s leak is unprecedented, not only in its volume (700,000 classified files) but also, at least potentially, in its seriousness (the inclusion, in these files, of raw reports detailing combat operations).
I asked two eminent scholars of military law — Gary Solis of Georgetown Law School and Eugene Fidell of Yale Law School — whether they could recall any parallels in the past century. They could come up with only one: John Walker, a U.S. Navy chief warrant officer who, in 1985, sold highly sensitive secrets to the Soviet Union. He was court-martialed and is still serving a life sentence. In another notable case, Samuel Morison, a former Navy intelligence officer, leaked classified photos of Soviet ships, taken by a secret U.S. spy satellite, to a British defence publication. But Morison had left the Navy by that point and was a civilian Defence Department official. A civilian court convicted him under the Espionage Act and sentenced him to two years in prison. Bill Clinton pardoned him on the last day of his presidency, in part because that First World War-era law had been enforced so rarely and inconsistently.
These comparisons, of course, are far from precise. Manning neither supplied a cache of documents to an enemy entity nor made any money from the deal. But this only highlights how brazen the Manning case looms in the annals of American military history. This is not "another case" of the Obama administration chasing down the source of a national security leak; it is a massive and extremely unusual violation of the Uniform Code of Military Justice.
Second, the very purpose of the military court system is very different from that of the civilian courts. As a recent study of military justice by the Congressional Research Service put it:
"In the [civilian] criminal law system, some basic objectives are to discover the truth, acquit the innocent without unnecessary delay or expense, punish the guilty proportionately with their crimes, and prevent and deter further crime, thereby providing for the public order. Military justice shares these objectives in part, but also serves to enhance discipline throughout the Armed Forces, serving the overall objective of providing an effective national defence." (Italics added.)
Many of Manning’s supporters have complained that the military prosecutors dragged the soldier into court as an example to others. To some extent, that’s true. It’s also beside the point. Even if it were the case, as Manning’s supporters also argue, that the leaks exposed war crimes or at least did no real harm to national security, that wouldn’t matter in a military trial. Given that one function of the military justice system — a key reason for keeping it separate from the civilian justice system — is to enhance discipline across the armed forces, no Army judge would have cut slack for a soldier who had violated his or her security pledge so blatantly.
Third, in this context, and given that Manning was convicted on 20 of 22 counts, a sentence of 35 years is not excessive. More to the point, it’s very unlikely that Manning will spend anywhere nearly that long behind bars.
The presiding judge, Col. Denise Lind, could have imprisoned Manning for 90 years had she pushed the sentencing guidelines to the max. The Army’s prosecutors urged her to send Manning to prison for 60 years, as a deterrent to others. It’s a good thing — for Manning, the legitimacy of military courts, and freedom of the press — that Lind waved off their absurd calculus. Having already acquitted Manning of the one charge ("aiding the enemy") that carried an automatic life sentence, Lind apparently reasoned that it would be unjust to hand down a sentence amounting, for all practical purposes, to the same thing.
It’s worth noting that, early on in the trial, Manning pleaded guilty to a handful of the charges with the understanding this would mean 20 years in jail. After the guilty verdict on all but two of the charges, Manning’s lawyer pleaded for a 25-year sentence as a gesture of mercy for Manning’s good intentions, apologies, and promise to lead a good life after release. As a compromise, 35 years comes much closer to Manning’s position than to that of the judge’s fellow officers.
But there are several reasons why Manning will likely see wide-open skies well before 2048. First, Lind ruled that the 3.5 years of time served would count against the sentence. Second, as in all court-martial trials, Manning’s sentence will automatically be examined by a review board, which has the power to reduce — but not extend — the term of imprisonment.
Finally, there are some interesting passages in Army Regulation 15-130, which deals with clemencies and paroles. According to Section 3-1.e(1)(c), a prisoner sentenced for 30 years or longer is eligible for parole after serving 10 years — or, subtracting the time Manning has already served, 6.5 years. Even more alluring, Section 3-1.d(5) states that a prisoner sentenced to 30 years or longer can apply for clemency (a pardon or reduced sentence) a mere three years "from the date confinement began" - in other words, Manning could apply for clemency now — and can reapply "at least annually thereafter."
Of course, applying for clemency or parole doesn’t ensure getting it. But there is another card up Manning’s sleeve. According to Section 3-2.a(4), the Army Clemency and Parole Board may consider, among other criteria, the prisoner’s "psychological profile" and "medical condition," including "the prisoner’s need for specialized treatment." (Italics added.)
In a statement released Thursday, Manning — who has a long and well-documented history of confused gender identity — came out as female, asked to be addressed as Chelsea instead of Bradley, and requested hormone treatments while in the Army prison at Fort Leavenworth, Kan. Army spokesmen have said they are under no obligation to supply such treatments.
If the wardens at Fort Leavenworth take the same position, a case could be made that incarceration would violate "the prisoner’s need for specialized treatment" and that, therefore, Manning should immediately be granted clemency. (Recall: Under Army regulations, Manning is eligible to apply for clemency now.)
At that point, the Clemency and Parole Board would suddenly find itself under a very glaring public light. It’s worth noting that, according to Army regulations, the board’s ultimate power comes from — and its rulings can be overruled and preempted by — the secretary of the Army. The current secretary is John McHugh, who, until President Barack Obama appointed him to the post in 2009, was a nine-term Republican congressman from New York, the ranking member of the House Armed Services Committee, and, before he advanced to that rank, chairman of the committee’s Morale, Welfare, and Recreation Panel.
Will McHugh be sympathetic to Manning’s plea? Will he regard the whole issue of gender identity as prompting a "need" for specialized treatment? The ultimate authority here is Obama, who as commander-in-chief governs all aspects of military life. Could pressures force a decision about Manning’s fate to the very top of the chain? If it did, which Obama would come to the fore — the upholder of military discipline (including the prevention of leaks) or the crusader for equality of gender rights in the military? And does equality of gender rights include transgender rights for Obama? And do those rights include the full expression of gender identity?
The Manning case could soon get very interesting in a totally unanticipated way.
Fred Kaplan is Slate’s War Stories columnist and author of the book The Insurgents: David Petraeus and the Plot to Change the American Way of War.