Every good trial lawyer has experienced an epiphany at some point in life, where a word, an event, a song, or a film pealed the announcement of a calling to dedicate one’s life to upholding, defending, and cherishing the law. I have always been influenced by movies, as evidenced by Raiders of the Lost Ark sewing the seeds of an archaeology degree, but more importantly A Few Good Men challenged me to master the art of cross-examination and hold those in positions of power to account.
The eminently quotable script crescendos in the setting of a court martial, where the judge and jury were tasked with deciding a thorny issue of accidental death arising out of reluctant participants, who had been ordered to haze a weakling. For me, the most compelling feature was whether they be misguided, every character at a certain point had an unwavering belief of the righteousness of their actions as Col. Nathan R. Jessop railed “we use words like honor, code, loyalty, we use these words as the backbone of a life spent defending something, you use them as a punch line.”
At the end of it all, the military ogres were detained, the unwilling bullies were disciplined but not too harshly. Lt. Kaffee realized personal validation and, to paraphrase Steinbeck, the judicial process showed a sense of mercy but did not offend the dignity of the law. Lady Justice was left unviolated.
Unfortunately, the same cannot be said of the most recent turn of events in the case of Private Bradley, now known as Chelsea, Manning, where President Obama has taken a rare step of commuting a sentence so very soon after it had been passed and so little of it has been served.
After initial guilty pleas to 10 of the 22 charges, Manning was found guilty of a further nine charges, which included espionage and theft, and was acquitted of charges of aiding the enemy.
As is usual in any criminal case, the matter proceeded to sentencing and the judge was left with the unenviable task of determining the length of sentence for one who had violated the military oath on multiple levels, including steeling and disseminating at large hundreds of thousands of pages of diplomatic cables, classified Iraq and Afghanistan war reports and two videos. Col. Denise Lind, chief judge, determined that the appropriate sentence was to 35 years’ imprisonment, but Manning was to be eligible for parole after a third—11 years.
Some cried foul. For example, Julian Assange—whose WikiLeaks platform was the recipient and prime beneficiary—hailed Manning as a counter-culture hero and whistleblower. Pausing here, for this term has been misappropriated, as whistleblowers, who I regularly represent, use the law and its structures as tools to expose wrongdoing. When one reports to a regulatory authority, utilizing a lawyer, remaining anonymous, employing proper investigation, and effecting meaningful change, such actions can properly be termed whistleblowing. Manning, alternatively, used the blunt instrument of an indiscriminate data splurge, stole vital information, and gave it to those who would seek to do the United States harm. In short, Manning is a traitor.
Manning’s actions dwarf those of Jonathan Pollard, who disseminated crucial security information to an ally, Israel, to which it was legally entitled but being wrongfully withheld. Unlike Manning, Pollard pleaded guilty to a single charge of passing classified information to an ally, without intent to harm the United States, and cooperated with the prosecution and saved the government the embarrassment and expense of a trial. His reward was a sentence of life imprisonment, despite the plea deal that had been struck. Pollard spent 30 years in prison before the law mandated that he be paroled.
Instead of permitting justice to be served, today President Obama commuted i.e. reduced, Private Manning’s sentence to one of 7 years in total, scorning the judicial and penal process to the extent that Manning will not even serve to the one-third threshold established by the judge. However, the entreaties to President Obama to exercise powers of clemency to waive Pollard’s parole requirements, a man who has served his sentence, were stolidly rebuffed. The incongruity is stark—why decline to assist one who helped an ally but give a pass to one whose actions were treasonous?
While it is appreciated that the president is the Commander-In-Chief, a commutation of this type takes a flamethrower to the confidence of the military and its mandate to regulate itself according to the Uniform Code of Military Justice. It sends a message that mass violations of secrecy or abusing the trust reposed within a soldier are forgivable and that the legal and moral calibration of its judges is wayward.
It is with abuses of executive function like this that make me glad that Lady justice is depicted blind, as sometimes it is for her own good. Were she to have seen this, she would have realized that military justice died today, just for a moment, because it had no code, had no honor, and we were watching.
Robert Garson is Managing Partner of Garson, Ségal, Steinmetz, Fladgate LLP, an intellectual property and international litigation firm in New York. He is also a barrister qualified in England and concentrates on IP and First Amendment matters.