Accused Whistle-blower Now Charged With Capital Offense
By Kathleen Gilberd / COMD
Think of yourself as a soldier. Working at a desk job, you see shocking messages, reports and pictures about military activity that seems wrong and sometimes horrifying. And then, one day, you see a video recording of US soldiers laughing as they shoot unarmed civilians from a helicopter.
If you’re like most soldiers, you didn’t receive much training on the rules of engagement or the law of war, but there’s little doubt that what you’ve seen and read are war crimes. And you know, as most soldiers do, that reporting the problem to your superiors would get you in a lot of trouble and never go any farther than that. What is a person of conscience to do?
Someone in this situation decided that the reports and images had to be seen by the public. Bradley Manning, who allegedly had access to the information, is accused of releasing the helicopter video and thousands of reports and messages from the wars in Iraq and Afghanistan to WikiLeaks. WikiLeaks in turn put a portion of the reports, and the helicopter video, on the internet.
The Army has not released any information linking Manning to the documents or showing that he was the person who gave them to WikiLeaks, though the military commonly does this in high-profile cases, and Manning is presumed innocent until a court-martial determines otherwise. But the Army has clearly made up its mind on the matter—enough to charge Manning with a death penalty offense and to keep him in maximum confinement at Quantico Marine Corps Base under conditions echoing Guantanamo’s isolation and humiliation of confinees.
The military claims that Manning created a danger to national security, that he released classified documents that would aid the enemy (the death penalty charge is based on this) and endanger American forces and allies. So far, experienced observers have seen no such damaging information in the documents and pictures released by WikiLeaks. While some describe military actions, presumably the enemy was there and is already aware of things like civilian casualties and military mis-steps. What the reports and other documents really do is provide graphic proof of war crimes and hold US military actions up to ridicule. This is the real “offense” committed by the as-yet-unknown soldier or civilian who decided he or she could not ignore the images and the crimes. And as most soldiers would know, the Army has taken no action against those who committed the war crimes.
On March 2, 2011, Manning’s command brought 22 additional charges against him, supplementing the two charges first filed last summer. The most serious of these, “aiding the enemy,” carries a possible death sentence. According to an Army news release, the prosecution does not intend to recommend the death penalty—but the decision rests with a commander, not the prosecution. The press release said that the new charges were the result of continuing investigation and mentioned that the investigation is not over, leaving open possibility of yet more charges.
While observers think it is unlikely that a court-martial panel (jury) would impose the death penalty, the charge shows the Army’s seriousness in the case. It places additional pressure on Manning to “deal” for a lesser punishment in return for his confession and guilty plea, and tells the panel that any sentence short of the death penalty would be lenient. Even if the convening authority accepts the prosecution’s recommendation, potential panel members have been given a clear message that the alleged offenses rank among the most serious of military crimes. Needless to say, the death penalty charge also sends a strong message to any military personnel who might consider exposing war crimes.
Military death penalty cases come the closest to civilian criminal procedure and law. The court-martial panel must include at least 12 members. A finding of guilty must be unanimous and made by secret written ballot. If the panel imposes a death sentence, it must also be unanimous. Appeal to the Court of Appeals for the Armed Services is automatic. The President of the United States must approve any death sentence and sign the death warrant.
As this is written, the court-martial itself is likely to be months away. Manning’s civilian attorney, David Coombs, estimates that pre-trial hearings may take place in late May or early June, which means that the court-martial is unlikely to begin before the fall.
Conditions of confinement
Manning was placed in the Quantico brig, in maximum custody and under a “prevention of injury” watch in late July, 2010. Early this year, he was also placed on suicide watch, apparently on the basis of rather innocent remarks he made after harassment by his guards. Manning is completely isolated from other prisoners—he is, in fact, the only prisoner in his cell block—and spends 23 hours a day in his cell. He is allowed out for an hour of closely-watched “exercise” each day. In addition, Manning has been forced to strip down to his underwear each night. In March, after learning of the capital charge, and after making a sarcastic remark about the use of underwear and flip-flops in committing suicide, Manning was forced to sleep without any clothing at all for several days. Only after public and media outcry about his treatment was he given nightclothes—a velcroed jumpsuit for suicidal prisoners—but the other conditions of confinement remain unchanged.
This inhumane treatment has led to complaints that Manning is being tortured, and public outrage over his confinement conditions has brought increased attention to the case as a whole. Amnesty International in Britain has taken the unusual step of urging the UK government to intervene to prevent abusive treatment, as it appeared that Manning may be a dual British/US citizen.
On March 13, Assistant Secretary of State for Public Affairs P.J. Crowley resigned under heavy pressure from the administration, after telling a seminar at MIT, “What is being done to Bradley Manning is ridiculous and counterproductive and stupid on the part of the Department of Defense.” President Obama, on the other hand, told reporters that he had asked the Pentagon “whether or not the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards. They assure me that they are.”
On March 19 and 20, demonstrations and rallies were held in 30 cities around the US and internationally to protest the charges against Manning and his abusive treatment; in addition, his case was raised at national anti-war protests held on the 19th. The center point of the events was a demonstration at the front gate at Quantico on the 20th.
In advance of this demonstration, base security sent a memo to Quantico personnel warning that there were “substantiated indications and warning of possible denial of service attacks on MCBQ by supporters of WikiLeaks and PFC Manning. It is possible that these attacks will be timed to coincide with protest activity that is scheduled to take place in the vicinity of MCBQ on 20 Mar.” In addition, the memo warned, individuals might attempt to enter the base to commit vandalism or to harass Marines.
On March 20th, about 400 demonstrators gathered outside the main gate of the base, which was closed for the occasion. MPs and local county police, joined by at least four other law enforcement agencies, appeared in full riot gear, complete with mounted troops and tactical vehicles. Needless to say, the base was not inundated with criminal activity, nor was there violence on the part of the demonstrators, though local police reported that about 35 people, including Daniel Ellsberg and former Colonel Ann Wright, were arrested after an impromptu sit-in outside the gate. Before the demonstration, the Bradley Manning Support Committee requested permission from Quantico authorities for demonstrators to lay a wreath at the Iwo Jima memorial on base to honor the dead. Although the memorial is routinely open to the public, the command refused, but on the 20th protesters were told that six of them, accompanied by the media, could lay the wreath. At the last minute, police said they could not enter Quantico, but must throw the wreath at the statue through the gate. The sit-in followed.
The Manning case is a prime example of the military’s cruelty towards its own members and its indifference to or acceptance of war crimes. At issue are documents and images which appear to be “classified” only to the American people, but which contain information well known, or easily available, to the people Manning is accused of aiding. The information provides clear evidence that American troops have committed war crimes, and that no action has been taken against the troops who engaged in these crimes or the officers who often ordered their actions. Instead, in a harsh reminder that military whistleblowing results primarily in retaliation, the Army has tried to make Manning the enemy. One might argue that this choice, and Manning’s inhumane treatment, are crimes themselves.
(This article is adapted from one originally written for On Watch, the newsletter of the National Lawyers Guild’s Military Law Task Force, www.nlgmltf.org. Thanks to MLTF attorney Jim Klimaski for information about military death penalty cases.)