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In re: PFC Manning and Rushes to Judgment

December 19, 2011

1. History, 2. Law, 6. Trial

In re: PFC Manning and Rushes to Judgment

Every once in a while a trial comes along that concerns an incident broadcast widely.  When I was cutting my teeth as an attorney, it was OJ Simpson.  Recently, it was Michael Jackson’s doctor and that girl in Florida that supposedly killed her daughter.  Today, it is PFC Manning.

Manning allegedly downloaded a ton of documents.  Top Super-Duper Secret cables from the US State Department concerning very frank diplomatic discussions.  He then gave those cables to a website – WikiLeaks – that prides itself on publishing things it shouldn’t oughta publish of this very nature.  Hillary went ballistic.  President Obama summed it up as  “He broke the law.”  (Yeah, I know Obama’s an attorney that somehow forgot the presumption of innocence that is the very cornerstone of our Constitution – don’t get me started.)

To get a flavor for Manning’s alleged exploits, check this out:

Manning had already been sifting through the classified networks for months when he discovered the Iraq video in late 2009, he said. The video, later released by Wikileaks under the title “Collateral Murder,” shows a 2007 Army helicopter attack on a group of men, some of whom were armed, that the soldiers believed were insurgents. The attack killed two Reuters employees and an unarmed Baghdad man who stumbled on the scene afterward and tried to rescue one of the wounded by pulling him into his van. The man’s two children were in the van and suffered serious injuries in the hail of gunfire.

“At first glance it was just a bunch of guys getting shot up by a helicopter,” Manning wrote of the video. “No big deal … about two dozen more where that came from, right? But something struck me as odd with the van thing, and also the fact it was being stored in a JAG officer’s directory. So I looked into it.”

JAG – Judge Advocate General’s Corps … attorneys.  The kid allegedly had access to the computer directories of attorneys.

My reaction to all of this?  I was and am still thrilled it happened.  Why?  Follow me here.  The dude’s a Private First Class.  Enlisted ranks begin with Private.  You go E-1, E-2 (both Privates), then E-3 (Private First Class).  Gomer Pyle was a PFC!  And Manning somehow had access to Top Super-Duper Secret diplomatic cables and the files of attorneys.  Cut me a break.  I firmly believe that Russia and China are fully invested in espionage.  Color me strangely, I guess, but if all it takes is a PFC rank in the right office to get full access to all that data, then Manning did us a favor:  Russia and China has had access for years, if not decades.  Manning showed us the hole in the system.  Now we can close it.  Thank you, PFC Manning.

Since Manning was an active enlisted member in the Uniformed services of the United States (US Army), he falls under the Uniform Code of Military Justice.  For us, all that means is that our civilian system – federal and state – does not apply.  The UCMJ has many flavors of our civilian system – there is, for example, a prohibition to compelling a defendant to testify against his own interests.  They can’t flog people or brand them like animals.  But for convicted crimes like Espionage, they can kill you. I suspect they would couch it here – “In the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security.” Seems fair. (Pop Quiz:  What’s the mens rea standard in that charge?)

Yet there are substantial differences.  Just browse Google on “PFC Manning unfair trial.”  His defense does not control which witnesses can be compelled to testify on his behalf.  That’s not very cool – it’s his defense, and he should be able to fashion it in any manner he chooses.  Particularly so if he’s gonna wind up in front of a firing squad at the end of the day.

Let me be clear on something.  I’m not impressed with traitors.  Nor am I impressed with politicians – and sometimes the line is too thin for my tastes.  If it is established in a fair and equitable trial that Manning endangered the national security of this nation thereby committing Espionage, and the established punishment for Espionage is death, then fire away.  I understand completely that when he entered the Armed Forces he took an oath and relinquished certain civilian rights.  Too bad for him.

But here’s my issue.  Just like OJ, MJ’s doc, and that Florida girl, the world is alive with condemnation before the trial is finished.  I frankly don’t care what he has admitted in public, what has leaked, or any of it – he is convicted or not based upon the evidence presented in court.  Too bad for him that his court is military, but he bought into it.  If evidence is not admitted, there’s decades of trials to support the appropriateness of the exclusion – it doesn’t matter if we know about the excluded “facts” from the press.

Can we have opinions?  Sure.  Of course we can.  But we better be wholly disinterested in the matter.  President Obama clearly is not.  The dude’s the head of the military.  A professional would have kept his mouth shut.  But even us disinterested folks need to understand something as we form and express our opinions.  The US Constitution is ours every day.  We can’t be proud of our First Amendment rights only when we like the freely spoken speech we are hearing.  We can’t demand a Search Warrant unless it’s against that druggy looking kid down the street.  PFC Manning is innocent until proven guilty, even under the UCMJ.  And then when found guilty (if that happens), he has certain rights to appeal.

Let me swing this into our civilian-court system.  What if, as you read all the “He’s guilty” articles published from the first day we learned about all of this until just before the trial began, you agonized for two reasons:  A jury will be selected from among other people reading those same articles, and the defendant is your son.

And after you process that, add this:  I’ve written it before – there is no such thing as “getting off on a technicality.”  So-called “technicalities” are violations of the Constitution.  If a cop had a bad Warrant or beat a confession out of your boy, you’d want the resulting evidence excluded regardless of how inculpatory it was.

Let these public trials run their course according to the procedure that you would hold dearly if it were your son on trial.

If Manning is guilty, they’ll shoot him.  There’s no need to rush.  Bullets don’t come with expiration dates.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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