Freethought San Marcos: A column
by LAMAR W. HANKINS
The right to due process is the bedrock of the right to trial in this country. The recently concluded trial of Pfc. Bradley Manning demonstrates that Manning did not receive due process, that is, procedural fairness and government actions that follow the law in all relevant aspects. Both the military courts and the civilian courts are controlled by the same Constitution, though Manning’s trial calls this proposition into question.
Certainly, Manning received the outward appearances of due process: he received notice of the charges against him; he had a jury trial presided over by an apparently unbiased judge; he was represented by able counsel; he had adequate time to prepare for trial; to a limited extent, he was given notice of the evidence against him, allowed to present evidence in his own defense, and permitted some cross-examination of the witnesses who testified against him; a written record was made of the proceeding; and the basis of the decision against him was made known.
If that’s all that were required, we could put this case behind us and move on, but the full story of the persecution (it was not just a prosecution) of Manning requires a more complete look at what the government did to him.
Manning was sentenced to 35 years in a military prison for leaking to WikiLeaks more than 700,000 classified files from the US State Department, diplomatic cables, powerpoint presentations, lists of military addresses, military databases, videos of military actions, documents related to the wars in Iraq and Afghanistan, and other similar materials. No one disputes that Manning leaked these materials. What is disputed is how he should be dealt with for what he believed was his duty to expose wrongdoing.
Manning was charged with violations of Army regulations: failure to obey a lawful order or regulation, aiding the enemy, knowingly giving intelligence to the enemy through indirect means, wrongfully storing classified information, and related infractions.
From the beginning of Manning’s case, however, the government engaged in misconduct. After he was arrested he endured eleven months of solitary confinement in conditions that the United Nations special rapporteur on torture considers, based on article 16 of the convention against torture, as cruel, inhuman, and degrading – very near to torture: “The special rapporteur concludes that imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence.”
Had the special rapporteur been allowed private access to Manning as a part of his investigation, he would have been able to gauge whether Manning’s treatment amounted to torture. Officials at the Pentagon denied the special rapporteur private communications with Manning, thus thwarting a complete investigation into the conditions of his imprisonment, a violation of human rights procedures according to the UN.
Manning was forced to sleep naked facing a lamp, confined to a 6 by 8 foot cell for over 23 and a half hours a day, and denied contact with other inmates. When they found him asleep, guards woke him up. When he danced to overcome the boredom, guards considered that he was mentally unstable. Besides, dancing was not a form of exercise approved by his jailers. Manning’s harsh treatment was justified by his guards as punishment for the most serious charge – aiding the enemy – though he had not been convicted of any crime at the time (and subsequently was found not guilty of aiding the enemy). His pretrial confinement conditions will be one issue taken up on appeal.
Another issue on appeal will be that Manning was denied his right to a speedy trial through a procedure in which an Army commander complied with a prosecution request several times to remove from consideration a period of time that would otherwise have counted toward the speedy trial clock. Such a procedure makes a complete mockery of the right to a speedy trial.
One of the most egregious violations of due process that I have ever heard in my over 35 years of practicing law was the changing of the charges against Manning after the government had rested its case. That is, after all evidence in the case had been presented and closed, the presiding military judge allowed the prosecution to change the charges of larceny to a different offense. Notice of the charges against a defendant before the trial begins is essential to due process. Changing those charges after all evidence has closed clearly violates the notice requirement.
Some actions relating to witnesses and evidence prevented Manning’s attorney, David Coombs, from pursuing the defense that he had chosen. For example, before the defense was allowed to call a witness, the witness had to be approved by the prosecution. Important evidence that Manning’s attorney wanted to present was not allowed, on the specious ground that it would compromise national security, though the evidence for this is minimal at best.
Further, although Manning could have used the defense that he had a duty under the US military code and international law to which the US subscribes to expose war crimes, he was denied the right to present evidence of this duty by both the court and the prosecution.
Some evidence that could have aided Manning was kept from the defense because it was declared classified. Coombs believes that classification was used to inhibit Manning’s defense. It was the government’s prosecutor alone who decided what classified evidence was beneficial and what was not. Coombs has a security clearance, so he could have looked at the evidence and decided its usefulness to Manning’s defense. That is a decision for trial counsel, not the prosecution. In civilian courts, where the prosecution has evidence that could be useful to the defense, but the prosecution is not sure of its usefulness, it is presented to judges privately and they decide what should be given to the defense. Not so in Manning’s trial.
On the charge of “aiding the enemy,” of which Manning was found not guilty, Coombs had this to say after the trial:
“Well, I think that, for starters, you go with an offense of aiding the enemy, and that offense really is unprecedented. When you look at how that was used in the past and how the government tried to use it in this case, they had to go back to an 1800s case to even make an argument, a colorable argument, as to why you would go after somebody who gave information to a journalist and say that they aided the enemy. That is an unprecedented aspect of this case. Not only there, but in every other charging decision that they made, they pushed the envelope of, and even strained, any realistic reading of what the law is. And yet, they seemed to not have a problem with that. It was almost a win-at-all-costs mentality. And I think that ultimately will be something on appeal that will get reviewed, and perhaps at that point Brad will get some relief, even on appeal.”
The claim of harm caused by Manning’s public disclosures seemed the most important reason for prosecuting him, but whether the disclosures had done actual harm was impossible for the government to prove. Coombs characterized the government’s evidence of harm, presented during the sentencing phase of the trial, as “pure speculation.” Normally, witnesses are not allowed to speculate, but the government could find no actual evidence of harm to national security, so it was left to present witnesses who could only speculate about possible harm in the future, not even likely harm, but maybe some potential for harm.
It should not be surprising that no harm could be found. According to The Arizona Republic, 5 million government employees and contractors are eligible to see all of the information Manning leaked. US Rep. Duncan Hunter believes that the government has far too many records classified – that we are in a period of “classification inflation.” As a result, average Americans cannot know what their government is doing in matters that, if publicized, would not harm national security, but would severely embarrass the government.
Such secretiveness prevents journalists from informing the public about matters that we should know if we are to be citizens capable of making informed and intelligent decisions about government policy and practice. Considering the government actions that we do know about, what is surprising to me is that there are not more leaks. Preventing such leaks is, in part, what the Manning trial was all about – an attempt to discourage whistleblowing by essentially ending the lives of those who dare to let the public know about the actions of its government and its abuse of its authority. The government wanted Manning sentenced to nearly double the 35 years in prison he received – a sentence that could have kept him in prison for the rest of his life.
Another troubling aspect of Manning’s trial, directly related to secrecy, was that some of it was closed to the public (and none of it was allowed to be broadcast so the public could see first-hand what the government was doing). Coombs believes that the government used closed sessions to convince the public that some information released by Manning was harmful. Otherwise, there would be no reason for closed sessions.
Coombs and many other observers believe that the government was embarrassed by the content of some of the leaks, as well as by the massive amount of leaks. Especially with regard to the diplomatic cables that became public, Coombs believes that having the truth come out was extremely embarrassing:
“I think the damage there was an embarrassment of having other people see that we don’t always do the right thing for the right reasons as the United States, which might come as a surprise to some people. You would think that when we deal with other countries, when we deal with people who are less fortunate than our country, that we’re doing so in a way that helps everybody, that’s in everyone’s best interest. But that’s not always the case. And, in fact, frequently we do things that are in our own national interests, and sometimes that is to the detriment of people who are struggling to have what we have here in America—a democracy, a free and open press. And that’s a little disheartening when you see that. And I think that’s probably the biggest damage, because if people actually look to these documents, they will see that we don’t always do what we should do, and we are not always the country that we should strive to be.”
Perhaps the most embarrassing leak (released by WikiLeaks), and certainly one of the most damaging to America’s image in the world, was the 2007 video of air strikes in Baghdad by two Apache helicopter crews that killed a Reuters cameraman and his assistant, along with nine Iraqis, two of whom may have had weapons. The attack was approved by the crews’ commander via radio communication at the crews’ urging. Not content with the killing and maiming they had just done, at least one of the Apache helicopter crews opened fire on a van just minutes later that was trying to rescue the wounded. The van was occupied by a family that included two children who were both wounded. No evidence has surfaced that any of the dead were insurgents. Their behavior did not indicate any activity that would have been considered threatening to nearby US troops. It is not clear whether WikiLeaks obtained the footage from Manning first, or had obtained it before Manning released the material.
Regardless of where the Baghdad air strike footage originated, what seems clear today is that Manning is, as Coombs described him, “a good young man who did what he thought was morally right, and for the right reasons, and he was sentenced the way we would sentence somebody who committed murder, the way we would sentence somebody who molested a child.”
It is a failure of the justice system, both military and civilian, that the callous, unjustified killing of innocent Iraqis, including children and journalists, has not been redressed, but Pfc. Manning has been sentenced to 35 years in a military prison for embarrassing the government in a trial that grossly violated the constitutional guarantee of due process and was nothing short of tyrannical. This is a time when all patriotic Americans should be questioning the ability of its government to follow the values that are the foundation of our country. Manning should be at least as free as those who carried out the 2007 massacre in Baghdad.
[NOTE: Quotes from David Coombs are from an interview he gave to independent journalist Alexa O’Brien just after the Manning trial ended. To join an effort to free Manning, go to <http://www.bradleymanning.org/featured/pardon-bradley-manning-campaign-launched-sign-the-petition-and-show-your-support>.
© Lamar W. Hankins, Freethought San Marcos
LAMAR W. HANKINS is a former San Marcos city attorney.