PFC Manning to face charge of aiding the enemy

[thaiboxerken]

Has the USA declared Assange an enemy of the State?

 

[JoeTheJuggler]

Has the USA declared Assange an enemy of the State?

The argument is that by leaking documents to a someone he knew would publish them, Manning was indirectly communicating them to the enemy (presumably the Taliban and Al Qaida). I disagree that that's what the law meant by indirect communication, or that constructive evidence (Manning should have known that the enemy would read the leaked documents) is good enough for a conviction on the charge of aiding the enemy.

 

[thaiboxerken]

It is a silly argument, but a good enough excuse for some.

 

[TraneWreck]

Here is an in depth analysis of how Article 104 operates with respect to Manning. Given the less than stellar statutory interpretation that's gone down so far, I recommend reading the whole thing:

The military, then, would seem to have three possible arguments under Article 104(2):

[1] Manning is guilty of “giving intelligence to the enemy,” because he gave intelligence to WikiLeaks that he knew would be made available on the internet, and an enemy of the United States did, in fact, access that information.

[2] Manning is guilty of “communicating with the enemy” because he gave information to WikiLeaks intending that an enemy of the United States would receive it. (The “intent required” view.)

[3] Manning is guilty of “communicating with the enemy” because he gave information to WikiLeaks knowing that it would be published on the internet, where any enemy could access it. (The intent not required view.)

The second argument is the weakest, because it is difficult to argue that Manning intended the information he allegedly stole to reach the enemy. I have yet to see the military or the U.S. government claim that he released the information to WikiLeaks hoping that it would find its way to al-Qaeda. Indeed, even Manning’s most passionate critics seem to accept that he saw himself as a whistleblower, not as a footsoldier in the war against the United States. (To be clear, the offence as I have sketeched it would not require the intent to actually aid the enemy; the intent for the enemy to receive the information would be enough.)

The first and third arguments are thus the most plausible. Both, however, suffer from a very significant problem: if Manning has aided the enemy, so has any media organization that published the information he allegedly stole. Nothing in Article 104 requires proof that the defendant illegally acquired the information that aided the enemy. As a result, if the mere act of ensuring that harmful information is published on the internet qualifies either as indirectly “giving intelligence to the enemy” (if the military can prove an enemy actually accessed the information) or as indirectly “communicating with the enemy” (because any reasonable person knows that enemies can access information on the internet), there is no relevant factual difference between Manning and a media organization that published the relevant information.

To be sure, the UCMJ only applies to soldiers, so WikiLeaks or the New York Times could not actually be charged under Article 104. But there is still something profoundly disturbing about the prospect of convicting Manning and sentencing him to life imprisonment for doing exactly what media organizations did, as well.

http://opiniojuris.org/2011/03/02/did-bradley-manning-aid-the-enemy-did-the-new-york-times/

This is the key element:

the Military Judges' Handbook specifically requires that if this theory is used -- that one has "aided the enemy" through "indirect" transmission via leaks to a newspaper -- then it must be proven that the "communication was intended to reach the enemy." None of the other ways of violating this provision contain an intent element; recognizing how extreme it is to prosecute someone for "aiding the enemy" who does nothing more than leak to a media outlet, this is the only means of violating Article 104 that imposes an intent requirement.

http://www.salon.com/news/opinion/glenn_greenwald/2011/03/03/manning

 

[TraneWreck]

It is also deeply depressing that anyone would defend the manner in which Manning has been treated in prison before receiving a trial (though the treatment would be inhumane even for a convict):

From the beginning of his detention, Manning has been held in intensive solitary confinement. For 23 out of 24 hours every day -- for seven straight months and counting -- he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he's barred even from exercising and is under constant surveillance to enforce those restrictions. For reasons that appear completely punitive, he's being denied many of the most basic attributes of civilized imprisonment, including even a pillow or sheets for his bed (he is not and never has been on suicide watch). For the one hour per day when he is freed from this isolation, he is barred from accessing any news or current events programs. Lt. Villiard protested that the conditions are not "like jail movies where someone gets thrown into the hole," but confirmed that he is in solitary confinement, entirely alone in his cell except for the one hour per day he is taken out.

http://www.salon.com/news/opinion/glenn_greenwald/2010/12/14/manning

A March, 2010 article in The Journal of the American Academy of Psychiatry and the Law explains that "solitary confinement is recognized as difficult to withstand; indeed, psychological stressors such as isolation can be as clinically distressing as physical torture."

For that reason, many Western nations -- and even some non-Western nations notorious for human rights abuses -- refuse to employ prolonged solitary confinement except in the most extreme cases of prisoner violence. "It’s an awful thing, solitary," John McCain wrote of his experience in isolated confinement in Vietnam. “It crushes your spirit." As Gawande documented: "A U.S. military study of almost a hundred and fifty naval aviators returned from imprisonment in Vietnam . . . reported that they found social isolation to be as torturous and agonizing as any physical abuse they suffered."

We used to understand this, but this is the post 9-11 world. Those terrorists managed to do more than take down the towers, it seems. Their most impressive act of disassembly appears to be the havoc they've let loose upon our legal traditions.

This is why the conditions under which Manning is being detained were once recognized in the U.S. -- and are still recognized in many Western nations -- as not only cruel and inhumane, but torture. More than a century ago, U.S. courts understood that solitary confinement was a barbaric punishment that severely harmed the mental and physical health of those subjected to it. The Supreme Court's 1890 decision in In re Medley noted that as a result of solitary confinement as practiced in the early days of the United States, many "prisoners fell, after even a short confinement, into a semi-fatuous condition . . . and others became violently insane; others still, committed suicide; while those who stood the ordeal better . . . [often] did not recover sufficient mental activity to be of any subsequent service to the community." And in its 1940 decision in Chambers v. Florida, the Court characterized prolonged solitary confinement as "torture" and compared it to "[t]he rack, the thumbscrew, [and] the wheel."

Just consider that for a moment. It was considered torture in 1890. 1890. That was before we seriously dealt with child labor laws.

 

[WildCat]

Perhaps you could start by finding a report where a psych evaluation recommends that Manning be placed on suicide watch. Surely the brig commander would only put him on suicide watch at the recommendation of a trained professional and not for any other reason.

What makes you think the brig commander isn't authorized to make this determination?

 

[A Laughing Baby]

What makes you think the brig commander isn't authorized to make this determination?

Certainly he is. I wouldn't mean to say that he isn't. I would only hope that he would make a decision so inextricably related to Manning's psychological well-being under advice from professional evaluations of the same.

 

[TraneWreck]

As for Manning's obligations as a soldier and his rights under United States law:

In 2005, General Peter Pace, Chairman of the Joint Chiefs of Staff, told reporters: “It is absolutely the responsibility of every U.S. service member [in Iraq], if they see inhumane treatment being conducted, to try to stop it.” This, in other words, was the obligation of every U.S. service member in Operation Iraqi Freedom; this remains the obligation of every U.S. service member in Operation Enduring Freedom in Afghanistan.

http://pulsemedia.org/2011/02/18/the-trials-of-bradley-manning-a-defense/

It was his duty to report violations of US Army Field manual 27-10, violations of UCMJ and violations of International law.

Based on the law, it's a crime to turn over prisoners if it is known that they will be tortured. Manning's first complaints to supervisors were over this issue:

Ever since our country signed and ratified the Geneva Conventions and the Convention against Torture, it has been the law of our land that handing over prisoners to a body that will torture them is a war crime. Nevertheless, between early 2009 and August of last year, our military handed over thousands of prisoners to the Iraqi authorities, knowing full well what would happen to many of them.

He was ignored, told to keep doing as he was ordered.

Perhaps most importantly, Field Manual 27-10 incorporates the Nuremberg principles:

Principle IV: “The fact that a person acted pursuant to an order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

This is American law. This is military law.

Have we just decided that's irrelevant now? Those 400,000 Americans that died in WWII can be ignored because our country is now scared ******** about dudes with beards living in caves?

 

[WildCat]

It is also deeply depressing that anyone would defend the manner in which Manning has been treated in prison before receiving a trial (though the treatment would be inhumane even for a convict):


http://www.salon.com/news/opinion/glenn_greenwald/2010/12/14/manning



We used to understand this, but this is the post 9-11 world. Those terrorists managed to do more than take down the towers, it seems. Their most impressive act of disassembly appears to be the havoc they've let loose upon our legal traditions.



Just consider that for a moment. It was considered torture in 1890. 1890. That was before we seriously dealt with child labor laws.

I suspect that in a military brig a homosexual accused of aiding the enemy during wartime will be about as popular as a child molestor in a civilian prison. And the same people crying about his treatment now would be blaming the military for letting him mingle with the general population if he was harmed by other inmates.

And let's not forget he had access to classified information and is accused of espionage, you don't put him in a situation where he can blab more secrets to others.

And you have shown no evidence at all that this sort of treatment came about post-9/11. It would surprise other convicted spies like Jonathan Pollard, who has been in the same sort of solitary confinement since 1985 or so.

 

[A Laughing Baby]

I suspect that in a military brig a homosexual accused of aiding the enemy during wartime will be about as popular as a child molestor in a civilian prison. And the same people crying about his treatment now would be blaming the military for letting him mingle with the general population if he was harmed by other inmates.

I do agree that Manning would certainly be in danger if he were in the general population of the brig.

However, I'm pretty certain that protective custody does not entail being required to respond to guards' inquiries at regular intervals, forced nudity, sleep deprivation (if you curl up in a ball or face away from the door), 24/7 monitoring, and exercise restrictions.

 

[TraneWreck]

I suspect that in a military brig a homosexual accused of aiding the enemy during wartime will be about as popular as a child molestor in a civilian prison. And the same people crying about his treatment now would be blaming the military for letting him mingle with the general population if he was harmed by other inmates.

Nice attempt at evasion. Is that why he's not allowed to have a pillow or blankets?

And let's not forget he had access to classified information and is accused of espionage, you don't put him in a situation where he can blab more secrets to others.

Again, that, if true, would only explain a fraction of his treatment.

And you have shown no evidence at all that this sort of treatment came about post-9/11. It would surprise other convicted spies like Jonathan Pollard, who has been in the same sort of solitary confinement since 1985 or so.

Hmm, I wonder if there's a way to distinguish these two people?

Did one of them have a trial?

 

[WildCat]

Nice attempt at evasion. Is that why he's not allowed to have a pillow or blankets?

He's not allowed a pillow or blankets because he might hang himself with them. It happens all the time in jail/prison.

Again, that, if true, would only explain a fraction of his treatment.



Hmm, I wonder if there's a way to distinguish these two people?

Did one of them have a trial?

Jail rules are every bit as restrictive as prison rules, completion of a trial has squat to do with it.

 

[TraneWreck]

He's not allowed a pillow or blankets because he might hang himself with them. It happens all the time in jail/prison.

And around and around we go.

I was actually in a jail yesterday with a client who was put on suicide watch. These things are documented and those documents are given to attorneys so that the system may be monitored. Surely Manning's legal counsel has been given the paperwork that shows he's a legitimate suicide concern, otherwise the prison supervisors could be retaliating against him.

Because we live in a nation of laws, I'm certain all the proper procedure has been followed, and I'm certain you can document this.

Jail rules are every bit as restrictive as prison rules, completion of a trial has squat to do with it.

That depends on why Manning was put on suicide watch, kept alone in his cell 23 hours a day, and otherwise humiliated. If they can prove it was somehow necessary (which, according to Amnesty and other oversight groups, it isn't) then they might have a case. If it's retaliation (Manning has not had a single incident of bad behavior cited) then they're punishing him without a trial.

Regardless, this treatment is inappropriate.

 

[thaiboxerken]

The documents were provided to the public, maybe that's the enemy the Government is talking about.

 

[TraneWreck]

From Amnesty's letter to Gates:

We are concerned that no formal reasons have been provided to PFC Manning for either his maximum security classification or the POI assignment and that efforts by his counsel to challenge these assignments through administrative procedures have thus far failed to elicit a response. We are further concerned that he reportedly remains under POI despite a recommendation by the military psychiatrist overseeing his treatment that such an assignment is no longer necessary.

http://www.amnesty.org/en/library/a...ba2-416a-8b98-d52df0dc817a/amr510062011en.pdf

Amnesty International recognizes that it may sometimes be necessary to segregate prisoners for disciplinary or security purposes. However, the restrictions imposed in PFC Manning’s case appear to be unnecessarily harsh and punitive, in view of the fact that he has no history of violence or disciplinary infractions and that he is a pre-trial detainee not yet convicted of any offence.

The conditions under which PFC Manning is held appear to breach the USA’s obligations under
international standards and treaties, including Article 10 of the International Covenant on Civil and Political Rights (ICCPR) which the USA ratified in 1992 and which states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. The UN Human Rights Committee, the ICCPR monitoring body, has noted in its General Comment on Article 10 that persons deprived of their liberty may not be “subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons …”.

Here is the letter from Manning's counsel detailing the treatment:

https://docs.google.com/viewer?a=v&...E3OWMtM2I4NzY5NDNkMmFh&hl=en&authkey=CMKgiogG

 

[sarge]

I think you've got the burden of proof on the wrong side.

Not all all. I recognize that the prosecution must prove that Manning intended for the enemy to get the information AND that the information was helpful to the enemy. The first element of this burden may be met to a jury's satisfaction if the prosecution demonstrates that Manning knew, or should have known, that the enemy getting the information was a foregone consequence of releasing the information to Wikileaks and that Manning released the information anyway.

The SCOTUS has given several big decisions that show that application of the death sentence is to be reserved for only the most heinous of crimes. I don't think constructive evidence of Bradley's mens rea is going to cut it for this charge, nor is constructive evidence that an enemy was aided.

The rules and standards of evidence are not on a floating scale that depends on the severity of the crime. If the elements of Art 104 are met and if Manning is found guilty, then the SC would not rule that the sentence was too harsh. The SC has never (to my knowledge) provided a decision that says that a capital crime may not receive a capital sentence. One murder or 100, the sentence may be the same.

I don't think there are two different charges. The deliberately or "knowingly" part is an element of the crime, though the crime (the unauthorized communication version) can be either direct or indirect communication. [ETA: That is, arguing that the communication was indirect doesn't mean you can leave off the "knowingly" part. I think indirect means that you can't get off because you turned the information over to a middle man or agent acting on your behalf who would bring it to the enemy.]

I believe you are correct on both counts. There is no way to be guilty of "aiding" under Art 104 without intending to aid the enemy and actualy aiding the enemy.

Again, capital crimes are really big deals. At one point there was a SCOTUS ruling that the death penalty could only be applied to first degree murders (and even then, only when the crime is egregious).

At one time, horse stealing was a capital crime.

In the here and now, a crime does not have to be any more egregious than that described in the elements of the crime in order for a prosecutor to seek the maximum penalty for the crime. Right now, today, if Manning is found guilty of a violation of Art. 104 and there is nothing fundamentally wrong with the trial, then the SC would not reverse a death sentece as unfairly harsh.

I think it's a stretch to say that proving the crime of leaking classified documents is sufficient to prove a capital crime (and allowing for constructive evidence of what he should have known and whether or not an enemy was indeed aided).

If the goverment can only provide support for the crime of leaking classified documents, then the death penalty is off the table. Leaking classified documents is not a capital crime - although leaking classified documents to the enemy with the intention of aiding the enemy would satisfy two elements of Art 104, which is a capital crime.

If the goverment can not convince a jury that Manning intended for the information to reach the enemy, then the jury should not convict him of a violation of Art 104, and should instead convict him of only a violation of Art. 134 or Art. 92. I believe that the goverment does not get a second bite at the apple, as neither of these is a lessor included offense for Art 104.

In my opinion (I am a layperson), the goverment would enjoy a greater likelyhood of success by charging Manning with a violation of Art 106a. That charge seems to fit the circumstances much better. It allows for a "should have known" instead of "did know". For that matter, if the goverment believes it can meet the "intent" requirment, charge him with Art 106 - that crime carries a mandatory death sentence.

 

[sarge]

Perhaps you could start by finding a report where a psych evaluation recommends that Manning be placed on suicide watch. Surely the brig commander would only put him on suicide watch at the recommendation of a trained professional and not for any other reason.

Not necessarily. Military confinement facilities have procedural guidelines for modifying the conditions of incarceration. It is possible that a detainee could be legitimately under suicide watch without necessarily having been diagnosed as suicidal.

I have no idea if that is the case, however.

 

[sarge]

It is a silly argument, but a good enough excuse for some.

It is just about the polar opposite of a silly argument. "Should have known" is a common concept in law - and the prosecution may not have to actually depend on the concept in this case.

If a person knows without doubt that released information will reach the enemy, and knows without doubt that the information will aid the enemy, and the person knows without doubt that the information is classified, and the person releases the information anyway, then the person might be assumed beyond a reasonable doubt to have intended to aid the enemy. That decision will rest entirely with a jury of senior NCOs and Officers.

 

[sarge]

And this mistreatment could hurt the prosecution's case.

It shouldn't. If Manning is being treated improperly, then the improper treatment should be halted and the persons responsible should be disciplined appropriately. That has no bearing on his trial, so long as nothing to be used against him at trial is connected to the detention conditions.

 

[TraneWreck]

PJ Crowley, the U.S. Department of State Spokesman and Assistant Secretary of Public Affairs, said this about Manning's treatment:

Charlie deTar: There's an elephant in the room during this discussion: Wikileaks. The US government is torturing a whistleblower in prison right now. How do we resolve a conversation about the future of new media in diplomacy with the government’s actions regarding Wikileaks?

Crowley: I spent 26 years in the air force. What is happening to Manning is ridiculous, counterproductive and stupid, and I don't know why the DoD is doing it.

http://www.salon.com/news/opinion/glenn_greenwald/2011/03/10/amnesty

Goddamn hippies.