United States military whistleblower Chelsea Manning appealed her case last week. The appeal extensively argues Manning had received one of the “most unjust” sentences in the “history of the military justice system.” In particular, it maintains the military judge was wrong to let allegations of disloyalty play such a role during sentencing.
Not only does it challenge the constitutionality of the Espionage Act offenses, which is significant, but it also asserts the military judge, Col. Denise Lind, committed several “errors” while presiding over Manning’s court-martial.
Nearly three years ago, Manning was convicted of offenses, which stemmed from her decision to provide WikiLeaks with over a half million U.S. government documents and a video of an Apache helicopter attack in Baghdad now known as the “Collateral Murder” video. She exposed war crimes, diplomatic misconduct, and other instances of wrongdoing and questionable acts by U.S. officials. She received a 35-year sentence and is currently in prison at Fort Leavenworth.
The appeal [PDF] was filed in the Army Court of Criminal Appeals. It calls attention to a myriad of factors, which led to a harsh sentence: admitting “aggravation evidence,” which did not directly result from offenses; using an overly broad definition for “exceed unauthorized access” on a computer; relying on an overly broad definition for “national defense” information; failing to “fully credit” Manning for “deplorable and inhumane conditions, which were tantamount to solitary confinement”; and allowing testimony related to Manning’s alleged “disloyalty.”
“This case is about whether the information Pfc. Manning disclosed, and how she did it, warrants a thirty-five year term of confinement,” according to the appeal. “She is not a spy. She did not personally profit from the disclosures. Once she is released PFC Manning is unlikely to ever hold a security clearance again. She certainly will not serve in the military. The government did not suffer any significant injury except for embarrassment and administrative burden.”
Manning did not “act with malice or disloyal intentions.” She “took responsibility for her actions,” and “there is no chance of recidivism. This was an isolated event. A thirty-five year sentence is not required to generally deter other soldiers.”
Her attorneys maintain the government prosecuted the case in such a manner that it was “difficult for the military judge to separate evidence that was directly related to the disclosures from evidence that was not.”
“Had the correct sentencing standard been applied, and inadmissible evidence not considered, the confinement term would have been far less,” the appeal claims. “Moreover, the government charged the case in a manner that inflated the maximum punishment and distorted what Pfc. Manning actually did.”
“Together this placed the military judge in an awful position. She had no way of knowing, under the circumstances, what was a fair sentence except for the recommendations of counsel. And as to that, all she did was split the recommendations in the middle, which is how she arrived at thirty-five years of confinement.”
The appeal describes how brig officials at the Marine base at Quantico knew Manning suffered from “poor and deteriorating mental health,” yet still kept her in confinement conditions, which compounded her problems. They “purposefully kept her in solitary confinement over the recommendation of the brig’s own mental health professionals to avoid unfavorable media attention.”
Ultimately, the military judge granted Manning 112 days credit for “unlawful pretrial punishment” after a hearing on allegations of abuse and mistreatment. Her attorneys contend the 112 days credit “trivializes the harm associated with placing a mentally ill inmate in solitary confinement for several months.”
“For this reason alone the charges should be dismissed because such conduct is outrageous,” the appeal argues. “If this court believes dismissal is too drastic, however, the defense urges it to at minimum award at least ten days of credit for each day PFC Manning was in unlawful pretrial confinement.”
Lind defined the term “national defense” information” so broadly that anything having to do with the “military” or “activities of national preparedness” constituted “national defense.” Manning’s attorneys believe it’s possible a more limiting standard would have potentially resulted in fewer convictions for violating the Espionage Act.
Similarly, the definition for “exceed authorized access” on a computer, which related to Manning’s use of a tool known as W-get to search and download diplomatic cables, was overly broad. It was not supported by the Computer Fraud and Abuse Act’s “legislative history” or the “decision of any court in the country.” This subjected Manning to an additional ten years of confinement and “dramatically changed the sentencing landscape.”
With regard to the “aggravation evidence,” the military judge allowed Brigadier General Robert Carr to speculate about how adversaries “could” use military incident reports from Iraq (which were published as the Iraq War Logs). There was no proof that any “adversaries” had used the reports. John Kirchofer of the Defense Intelligence Agency hyped the specter of “cooperating foreign nationals” impacted by the release of these reports from Iraq. This too was entirely speculative.
Commander Yousef Aboul-Enein speculated Al Qaida “could” use the information published by WikiLeaks. He referenced instances when the terrorist group had included material from WikiLeaks in their magazine and in a video. While this specifically related to Manning’s disclosures, the judge went beyond that to allow Aboul-Enein to reference the “Little Rock recruiting incident” and the “Fort Hood Shooting” with Major Nidal Hasan. Neither had anything to do with the disclosures of information, but the military judge categorized it as “context evidence.”
“I’m speculating, but take Al Qaida’s admonition in Inspire Magazine to help in processing the voluminous amount of information,” Aboul-Enein testified. “And, from that, if they see SIGACTS [incident reports] that are of interest, they can begin to piece together, like I said, a pattern of behavior that shows how U.S. combat forces operate in the field.”
Manning’s attorneys point out that Al Qaida’s “propaganda machine” continued “unabated” after she disclosed information, yet Aboul-Enein could not find one “single use of WikiLeaks documents by Al Qaida, AQAP, or any militant Islamist organization except the single magazine and video in 2011.”
The appeal further highlights the testimony from Under Secretary of State Patrick Kennedy, who at sentencing expressed his opinion that Manning’s disclosures had a “chilling effect” on information-sharing that “harmed national security.” The opinion was not “reasonably linked to Pfc. Manning’s offenses” and instead depended on a “speculative chain of events.”
For example, Kennedy suggested “‘chilling effects’ occur because leaks of classified information result in a “breach of confidence,” which in turn results in a reticence by foreign individuals to provide ‘full and frank opinions,’ which in turn results in a diminished value of reporting from the diplomatic field, which in turn impacts the ability of policymakers in Washington, D.C. to do a ‘better job in supporting our national security.'”
But Kennedy never “discussed a single diplomatic report affected by this reticence to share information, nor a single national security policy affected by this decreased reporting.”
“A long chain of events resulting in a nebulous harm to national security policy-making is not a specific harm directly resulting from’ the leaks,” Manning’s attorneys argue. “Even if such an effect could be deemed ‘specific,’ it was necessarily the result of intervening, independent decision-making by individuals within foreign governments, the Department of State, and elsewhere in the U.S. government. Thus, there was no reasonable linkage between the offense and its alleged effect.”
Altogether, this appeal thoroughly accounts for many of the reasons why Manning wound up with an exceptionally long sentence in military prison.
The appeal concludes, “The military justice system is often maligned for its perceived unfairness. What these critics fail to realize is Congress has vested in this court the power to right a wrong by examining the appropriateness of sentences with a fresh set of eyes.”
“The defense understands the enormity of the trial, but now that time has passed it is clear the Army over-exaggerated the crime. There are so many unique circumstances surrounding Pfc. Manning’s case that reducing her sentence will not have any effect on military readiness or good order and discipline.”
Attorneys call for the sentence to be reduced to ten years.