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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.

4 comments

1 Steve Bates { 12.27.11 at 11:44 am }

I am in no position to argue Manning’s guilt or innocence, but one thing about the Art. 32 hearing strikes me as unfair, something not intrinsic to Art. 32 hearings but specific to Manning’s case:

“… and to present their own witnesses.”

Ten witnesses were called by both prosecution and defense. Of the remaining 38 (yes, thirty-eight) witnesses called by the defense, the Investigating Officer disallowed 36, leaving Manning with two (2) witnesses in his behalf. Moreover, two of the witnesses called by both prosecution and defense refused to testify on the military equivalent of Fifth Amendment grounds.

The hearing lasted four days. Manning’s defense spoke for 50 minutes.

There used to be a notion that a criminal trial should not only be fair, but should also appear fair to the public. Apparently that notion does not apply here. If Manning goes to trial and is convicted of everything, I can accept that… if the trial bears any semblance to genuine justice. But I’m afraid the order has already come from the Commander-in-Chief, who actually said of Manning, in public, “He broke the law.” How could any military defendant possibly overcome that?

2 Bryan { 12.27.11 at 3:56 pm }

Steve, the Article 32 proceeding is not a trial, it is a probable cause hearing. All witnesses have to have some bearing on that narrow issue. The object of the hearing is to determine whether the prosecution has probable cause to proceed, not if the suspect is guilty or innocent.

Manning’s attorney knows this and therefore I must assume that many of the things he has done are for the media, rather than for Bradley Manning, because those efforts have not advanced Manning’s cause.

The suspect is totally shut out of the grand jury process, so the Article 32 proceeding is fairer and more transparent than its civilian counterpart.

This was not something that needed any major reaction or push. This is like a bail hearing, just part of the process. It does provide the defense with the basic outline of the prosecution’s case if the decision is made to proceed to a court martial.

The court martial is the trial of facts, and where the decisions on guilt or innocence are made.

Steve, it is not as if the military pays a lot of attention to the civilian leadership, unless a direct order is involved. For example, from personal experience when the commander acts contrary to the recommendation from the Investigating Officer of an Article 32 proceeding it is almost always not to hold a court martial, but to impose an administrative punishment ‘for the good of the service’. It is very possible that Manning will stripped of rank and benefits and given a general discharge ‘at the convenience of the military’, to avoid a court martial. I wouldn’t be overly surprised to see that happen because of all of the failures in his chain of command to deal with him before the release of the classified. All of the information about Manning’s conduct prior to his deployment and in Iraq will become part of the record, and will have to be dealt with. I would assume that a number of people have been encouraged to retire.

Frankly, a military defense counsel would be pushing the very real points that Bradley Manning should not have had the clearance that gave him access to classified information in the first place, and was obviously not fit for duty in a combat zone. Those are things that will resonate with a court martial panel, and based on what has been reported, are very provable and relevant to the case.

3 Steve Bates { 12.27.11 at 10:21 pm }

Bryan, I do understand that this is the equivalent of a probable cause hearing. That still does not give Mr. Obama a right to comment on Manning’s guilt or innocence. If Manning were a civilian, that blunder by O would probably result in an immediate call by the defense for dismissal. I still can’t help feeling that Manning’s due process rights are in peril in large measure because of what O said.

“… Bradley Manning should not have had the clearance that gave him access to classified information in the first place, and was obviously not fit for duty in a combat zone.”

By now there is very little doubt about that, but that is only a small part of what was established by this hearing… and by Manning’s treatment prior to it. Even if Manning is “stripped of rank and benefits and given a general discharge ‘at the convenience of the military’, ” he has still spent a year and a half in prison, the first year of that span with no charges against him. It is very difficult for me to see “punishment before charges” as being even remotely fair or in compliance with required due process. Indeed, if the US were subject to UN inspections, Manning’s treatment would very likely result in charges of human rights violations. But of course the US is invulnerable to anything and everything, and acts like it.

From a practical standpoint, if they hope(d) to use Manning to get at Assange, I believe they are overestimating Assange’s vulnerability. Manning himself, whether or not you regard him as a hero (many do; I do not, but I do not dismiss the notion altogether) has shown surprising courage to this point, especially for someone with so many issues in his personal life. I suspect he will be of very little use to the military or to the O administration.

4 Bryan { 12.28.11 at 12:36 am }

Actually, establishing that Manning was unfit is a very important part of the process, the most important part for Manning. That is the key to his not receiving any prison if he were to be tried and convicted, and that will be part of the process of deciding whether or not to go to trial.

Steve, the length of confinement without trial is a major stumbling block for sustaining this case on appeal, and another argument for administrative punishment.

People need to stop looking at this as a political statement, and start looking as it as the trial of an individual. His legal team needs to stop attempting to make this something it isn’t, and work on what it is – the standard military criminal justice procedure. Manning just entered that process after he was transferred to Fort George G. Meade. What happened when he was in Navy custody is not part of the system, and it is going to have to be explained as his military lawyer has already pushed for an investigation.

The hearing dealt solely with the charges and evidence that the prosecutors have put forth, and nothing else. The President’s only role in the military’s justice system is to issue pardons.

It is pretty much beyond dispute at this point that Bradley Manning broke the law concerning handling classified materials. There is a mountain of evidence to prove that. I doubt that anyone disputes it. The question for his legal team should be how to get Manning out of the mess that he is in. There is a path because of the way the case has been handled, but that path does not involve making this political.

This case should be about Bradley Manning, not about Wikileaks or Julian Assange. The fact that the DoJ wants to pursue that case is their problem.

After the current case is settled, Bradley Manning can decide about participating any further in other matters, but for the moment the emphasis should be on this case.