by feldmanwallach

Ian Wallach, Feldman & Wallach,

25 year old Bradley Manning was sentenced to 35 years in custody. He can be out between the ages of 34 (approximately) and 58.  Below are some thoughts on some immediate questions.

  • Was His Conduct Criminal?

Because so much information was released, it does not appear that Manning read everything and took the time to protect those who were assisting the United States. A transparent government is essential, and Bradley Manning’s actions helped shed light on terrible practices that the U.S. was engaging in against civilians, reporters, and those detained in Guantanamo. I am glad that someone did what he did, and glad that it helped bring about the end of our Iraqi conflict. But it is still criminal conduct and that requires some form of punishment.

  • Does a 35 year sentence serve the purposes of a criminal sentence (Societal Protection, Rehabilitation, Retribution, and Deterrence)?

Rehabilitation and Societal Protection are not at issue – Manning will never be in a position to have this access again.
Retribution should be, in my opinion, the least important factor in fashioning a criminal sentence. The idea is that the public deserves the satisfaction of a severe punishment – but the value in that is questionable and many, like me, even find it offensive. But it’s a factor, and many people are angry about what Mannng did, and 10 – 35 years in the United States Detention Brigade in Fort Leavenworth, Kansas should satisfy that blood-thirst.

It’s unclear whether this ruling will serve as a deterrent. It is the longest sentence given in U.S. history for leaking classified documents. But it was based was based on a massive release of information – 700,000 classified documents and videos. It provides no indication of what a sentence should be for the release of one document. .

  • Did the judge’s political views affect the sentence?

I doubt it – it’s just not a relevant factor. A bench officer’s duty is to apply the law, not make or change it. Because there is no obligation for a military judge to write the basis of her decision, we may never know the factors she relied on.

  • Did Manning’s sexual orientation effect the sentence?

Probably not. Gay rights groups such as GLAAD initially claimed that he was a “hero”, but they have stayed quiet recently. And the argument that he should receive more lenient treatment — based on his orientation — runs counter to the argument that all people should be treated equally.

If the issue is “enhanced stress for non-heterosexuals in the military due to an anti-gay culture”, then the solution is to implement programs that change the culture and assist the soldiers. It is not to be lenient when crimes are committed.

The defense’s case — from the beginning — has been about mitigating factors. Manning conceded criminal conduct initially (and faced 20 years on the charges he confessed to). This was one mitigating factor put forward by the defense.

  • Did Manning’s statement to the Court effect the sentence?

Acceptance of responsibility is a primary factor in sentencing. Most defendants are pursuing appeals based on claims of factual innocence, and can’t accept responsibility at this stage of a trial. But Manning confessed early on to 10 of the charges, and has always been willing to accept responsibility, and he reiterated that during the sentencing phrase. This likely contributed a great deal to the sentence being closer to the defense’s recommendation of 25 years, instead of the prosecution’s recommendation of 60.

  • What about the First Amendment implications?

Many fantastic organizations — such as the Center for Constitutional Rights – believe that this case has had brutal chilling effects on journalism, and that the application of espionage law was improper. As to the First Amendment issues, it’s a tough call. Had Manning written a book or told a journalist about the videos that he saw, that would surely be protected speech. But the act of taking and sharing information and videos is conduct, not speech, and perhaps why the First Amendment arguments were not present during these proceedings.

Manning himself was a great tool for organizations that seek to curtail the war effort and the expansion of federal power and the reduction of constitutional rights. The videos he released – showing civilians and journalists being killed by U.S. servicemen — helped the anti-war effort. And Manning deserves credit for this. It is also frustrating that these servicemen were never charged, and that Manning will do a lot of time for revealing crimes and the perpetrators of those crimes will never be held accountable.

  • How will this effect the pending Snowden matter?

This decision will likely help the State Department in its request to extradite Snowden – it is an example of someone receiving arguably-fair treatment under similar circumstances. But the two cases are extremely different – Manning was a solder, Snowden is not. Manning released 700,000 documents and videos, and the number Snowden released is not yet known. Manning was tried in a military court, and Snowden, if he is tried, will be tried in a civilian court. Aside from the “leak” factor, the two cases are very different.