Picking Your Fights
I’ve seen a lot commentary about the Bradley Manning Article 32 proceedings that obviously is based on a lack of understanding what the hearing is, and how it relates to the civilian system.
I have been under the military system and was part of the civilian system. Given a choice I would take the Article 32 hearing over the Grand Jury for anything I was accused of doing, because it is much fairer to the accused.
An Article 32 hearing is public; the suspect and their counsel are present; they are allowed to cross examine witnesses, and to present their own witnesses. At the end the Investigating Officer writes an opinion and presents it to the officer charged with overseeing the process, usually a commanding general, for a decision as to whether a court martial will be convened on the charges.
In a Grand Jury session, everything is secret; it is controlled by the prosecutor; and after the witnesses have been heard, an indictment is issued based on a majority vote of the jurors. The defense has no access to the proceedings, and sees none of the evidence unless an indictment is returned.
The purpose of the Article 32 hearing is to determine if there is probable cause to believe that the suspect broke the law. The case is tried by the court martial, not at the hearing.
Bmaz at Emptywheel covers this in more detail: On the Manning Art. 32, Court Secrecy & Nat. Sec. Cases.
Nancy Youssef, McClatchy’s Pentagon reporter, echoes my feeling about the charges: Bradley Manning hearing ends with no clear sign of harm done to U.S..
The military has overcharged Manning, and that is always a bad idea, because losing some of your charges at trial, often makes your entire case look bogus to a jury, even a military jury. You charge what you can prove beyond reasonable doubt. They are already going to have problems on appeal because of the length and conditions of the pre-trial detention, so overcharging is just going to make matters worse.