PFC Manning to face charge of aiding the enemy

[JoeTheJuggler]

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 law doesn't make allowances for the part I have bolded. [ETA: That is, for the aiding the enemy charge.]

The rules and standards of evidence are not on a floating scale that depends on the severity of the crime.

Do you want to bet on that?

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.

Strictly speaking, you're right. The prosecution can seek whatever it wants. My point is that the SCOTUS has strictly limited application of the death penalty. (I'm pretty sure there at least has to be a murder, and generally speaking it has to have especially heinous aspects to merit the death penalty.) While the prosecution could seek it, the courts would not allow it. (But, as has been pointed out, they aren't seeking the death penalty, so this point is moot.)

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.

Exactly. And proving the lesser crime should not be sufficient to also prove the more serious 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.

I agree with all of this. I don't think the prosecution has much of a case for the aiding the enemy charge.

 

[JoeTheJuggler]

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.

That's precisely the condition I was thinking that could affect the prosecution. If they use any statements Manning made, the defense can probably have it blocked as being coerced. Just from a practical point of view, it's a bad idea to mistreat someone accused of a serious crime.

 

[Taarkin]

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


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

Goddamn hippies.

Finally someone in the Obama administration is brave enough to stand up for what they beli-

Washington (CNN) -- P.J. Crowley abruptly resigned Sunday as State Department spokesman over controversial comments he made about the Bradley Manning case.

Sources close to the matter said the resignation, first reported by CNN, came under pressure from the White House, where officials were furious about his suggestion that the Obama administration is mistreating Manning...

Oh.

 

[WildCat]

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


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

Goddamn hippies.

ftfy

 

[TraneWreck]

And? His resignation has bearing on the substantive matters how?

This is a subject Obama has been absolutely terrible on:

http://www.salon.com/news/opinion/glenn_greenwald/

 

[A Laughing Baby]

It does show that there is an implicit acceptance, if not endorsement, of Manning's treatment by the Obama administration (which has been remarkably draconian in its national security measures, despite promises to the contrary), no?

 

[sarge]

The law doesn't make allowances for the part I have bolded. [ETA: That is, for the aiding the enemy charge.]

Strictly speaking, true and not completely relevent. If the prosecution can satisfy a jury that Mannings actions show he intended for "the enemy" to get the information, and they do so by demonstrating that Manning knew absolutely that the enemy would get the information, then it amounts to the same thing.

Do you want to bet on that?

Sure - but just so we are clear on the particulars:

I am saying that the rules of evidence for sustaining a murder conviction (for example) do not depend on the number of victims. The burden on the prosecution is the same for 1 victim or 100.

If the prosecution can prove than Manning intended to provide aid to the enemey, and that he actually provided aid to the enemy, then the sustainability of the conviction does not depend on the quality of the aid.

Strictly speaking, you're right. The prosecution can seek whatever it wants. My point is that the SCOTUS has strictly limited application of the death penalty. (I'm pretty sure there at least has to be a murder, and generally speaking it has to have especially heinous aspects to merit the death penalty.) While the prosecution could seek it, the courts would not allow it. (But, as has been pointed out, they aren't seeking the death penalty, so this point is moot.)

The SC has not ruled as you desribe. The SC has no rule that requires a murder IOT sustain a death penalty, and it certainly does not have a track record of overturning death sentences just because a crime isn't particulalry gruesome.

Exactly. And proving the lesser crime should not be sufficient to also prove the more serious crime.


I agree with all of this. I don't think the prosecution has much of a case for the aiding the enemy charge.

We'll see, of course.

 

[JoeTheJuggler]

It does show that there is an implicit acceptance, if not endorsement, of Manning's treatment by the Obama administration (which has been remarkably draconian in its national security measures, despite promises to the contrary), no?

Obama made a statement. I think he said something to the effect that he asked the appropriate people if Manning's treatment has been appropriate and was reassured that it is. I dunno--not quite tacit endorsement, but he doesn't seem interested in questioning the word of anyone.

On the larger point, I agree that Obama has not lived up to his campaign promises not to sacrifice our ideals in the name of security.

 

[TraneWreck]

It does show that there is an implicit acceptance, if not endorsement, of Manning's treatment by the Obama administration (which has been remarkably draconian in its national security measures, despite promises to the contrary), no?

Absolutely. That wasn't really being discussed, though. Certainly Obama's roled is disapointing, but we were having a discussion over whether Manning's treatment was inappropriate.

 

[WildCat]

On the larger point, I agree that Obama has not lived up to his campaign promises not to sacrifice our ideals in the name of security.

Idealism rarely wins the fight against reality. I haven't seen any evidence at all that his treatment is any different from other prisoners who may be suicidal or are national security threats.

 

[A Laughing Baby]

Obama made a statement. I think he said something to the effect that he asked the appropriate people if Manning's treatment has been appropriate and was reassured that it is. I dunno--not quite tacit endorsement, but he doesn't seem interested in questioning the word of anyone.

On the larger point, I agree that Obama has not lived up to his campaign promises not to sacrifice our ideals in the name of security.

Obama's statement was remarkably similar to one that Bush made about torture (that he had been informed by the appropriate people that our conduct was not inappropriate).

 

[TraneWreck]

Obama's statement was remarkably similar to one that Bush made about torture (that he had been informed by the appropriate people that our conduct was not inappropriate).

When Obama was asked on Friday about Manning's treatment, he said in part: "I've actually asked the Pentagon whether or not the procedures . . . are appropriate. They assured me they are." When George W. Bush, in his book, attempted to justify his torture regime, he wrote, as summarized by Newsweek's Jacob Weisberg: "When [Bush] asked 'the most senior legal officers in the U.S. government' to review interrogation methods, 'they assured me they did not constitute torture.' Case closed. You can't argue with the choices Bush defends in this book, because he doesn't argue them himself. He describes, asserts, and cites any authority handy, usually the authority he hired to defend his decisions" (h/t WLLegal).

http://www.salon.com/news/opinion/glenn_greenwald/

 

[TraneWreck]

Idealism rarely wins the fight against reality. I haven't seen any evidence at all that his treatment is any different from other prisoners who may be suicidal or are national security threats.

That's because you haven't read anything that's been posted. I gave you Amnesty International, the complaint filed by Manning's attorney, the on site psychologist who says the POI is not necessary as well as a great deal of discussion from people who have visited Manning.

On the other side, there isn't a single complaint about Manning's behavior, there isn't a single report showing him to be suicidal, and only vague claims are used to justify his ill treatment.

At least recognize that there exists no evidence that could convince you that his treatment is improper.

 

[JoeTheJuggler]

The SC has not ruled as you desribe. The SC has no rule that requires a murder IOT sustain a death penalty, and it certainly does not have a track record of overturning death sentences just because a crime isn't particulalry gruesome.

Gregg v. Georgia (1976) rejected the death penalty schemes of two states (NC and LA) because those statues didn't allow sufficient discretion in applying the death penalty. (Basically, it came too close to a mandatory death sentence for a specified crime, something the court rejected.) In rejecting the "cruel and unusual" argument, the court said that the death penalty isn't always cruel and unusual if it isn't disproportionate to the crime. (In other words, it is cruel and unusual unless the crime is proportionately heinous and unusual.)

In 1977 Coker v. Georgia found that the death penalty was grossly disproportionate for the crime of rape of an adult.


In 1984, though, Pulley v. Harris rejected the effect of Gregg v Georgia that required a comparative proportionality review, "[a]ssuming that there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review". In other words, if there was a proportionality problem, it could still be reviewed, but the review was no longer mandatory in all cases.

In 2008, Kennedy v. Louisiana rejected the death penalty (as being disproportionate) for the rape of a child where the victim did not die. It ruled that in crimes against individuals, the death penalty cannot be used unless there was a homicide or attempted homicide.

So, with the "aiding the enemy" charge, the death penalty can still be used without an attempted homicide because it's not a crime against an individual, but there is a clear tendency in the Supreme Court to reject disproportionate application of the death penalty.

 

[JoeTheJuggler]

Obama's statement was remarkably similar to one that Bush made about torture (that he had been informed by the appropriate people that our conduct was not inappropriate).

He sounded very similar to Bush too when he issued executive orders that re-affirmed the practice of rendition, saying that we need all the tools at our disposal, and turning prisoners over to countries where they might be tortured (a direct violation of the CAT) was another "tool".

 

[Taarkin]

It does show that there is an implicit acceptance, if not endorsement, of Manning's treatment by the Obama administration (which has been remarkably draconian in its national security measures, despite promises to the contrary), no?

From the article:

Crowley has also made clear he has the Obama administration's best interests at heart because he thinks any mistreatment of Manning could be damaging around the world to President Obama, who has tried to end the perception that the United States tortures prisoners.

Yeah, he's interested in changing perceptions. But not reality.

 

[KoihimeNakamura]

I'm only slightly surprised, given the pressures he had to give in to. Still, why did he give in?

 

[Newtons Bit]

I'm only slightly surprised, given the pressures he had to give in to. Still, why did he give in?

You're assuming he "gave in" and wasn't "convinced that it was the correct thing to do". I imagine being in the top job and having all of your advisors telling you about the very real and very scary people in the world had something to do with that. He may have just faced reality and realized his previous position was a fantasy (or even something he knew wasn't reality but stated it to appeal to his base).

 

[KoihimeNakamura]

I'd dare say that compromising your ideas is in fact giving in.

 

[Taarkin]

You're assuming he "gave in" and wasn't "convinced that it was the correct thing to do". I imagine being in the top job and having all of your advisors telling you about the very real and very scary people in the world had something to do with that. He may have just faced reality and realized his previous position was a fantasy (or even something he knew wasn't reality but stated it to appeal to his base).

Did you read the article? He hasn't changed his opinion.