It’s worth noting that, early on in the trial, Manning pleaded guilty to a handful of the charges with the understanding this would mean 20 years in jail. After the guilty verdict on all but two of the charges, Manning’s lawyer pleaded for a 25-year sentence as a gesture of mercy for Manning’s good intentions, apologies, and promise to lead a good life after release. As a compromise, 35 years comes much closer to Manning’s position than to that of the judge’s fellow officers.
But there are several reasons why Manning will likely see wide-open skies well before 2048. First, Lind ruled that the 3½ years of time served would count against the sentence. Second, as in all court-martial trials, Manning’s sentence will automatically be examined by a review board, which has the power to reduce—but not extend—the term of imprisonment.
Finally, there are some interesting passages in Army Regulation 15-130, which deals with clemencies and paroles. According to Section 3-1.e(1)(c), a prisoner sentenced for 30 years or longer is eligible for parole after serving 10 years—or, subtracting the time Manning has already served, 6½ years. Even more alluring, Section 3-1.d(5) states that a prisoner sentenced to 30 years or longer can apply for clemency (a pardon or reduced sentence) a mere three years “from the date confinement began”—in other words, Manning could apply for clemency now—and can reapply “at least annually thereafter.”
Of course, applying for clemency or parole doesn’t ensure getting it. But there is another card up Manning’s sleeve. According to Section 3-2.a(4), the Army Clemency and Parole Board may consider, among other criteria, the prisoner’s “psychological profile” and “medical condition,” including “the prisoner’s need for specialized treatment.” (Italics added.)
In a statement released Thursday, Manning—who has a long and well-documented history of confused gender identity—came out as female, asked to be addressed as Chelsea instead of Bradley, and requested hormone treatments while in the Army prison at Ft. Leavenworth, Kan. Army spokesmen have said they are under no obligation to supply such treatments.
If the wardens at Ft. Leavenworth take the same position, a case could be made that incarceration would violate “the prisoner’s need for specialized treatment” and that, therefore, Manning should immediately be granted clemency. (Recall: Under Army regulations, Manning is eligible to apply for clemency now.)
At that point, the Clemency and Parole Board would suddenly find itself under a very glaring public light. It’s worth noting that, according to Army regulations, the board’s ultimate power comes from—and its rulings can be overruled and preempted by—the secretary of the Army. The current secretary is John McHugh, who, until President Obama appointed him to the post in 2009, was a nine-term Republican congressman from New York, the ranking member of the House Armed Services Committee, and, before he advanced to that rank, chairman of the committee’s Morale, Welfare, and Recreation Panel.
Will McHugh be sympathetic to Manning’s plea? Will he regard the whole issue of gender identity as prompting a “need” for specialized treatment? The ultimate authority here is President Obama, who as commander-in-chief governs all aspects of military life. Could pressures force a decision about Manning’s fate to the very top of the chain? If it did, which Obama would come to the fore—the upholder of military discipline (including the prevention of leaks) or the crusader for equality of gender rights in the military? And does equality of gender rights include transgender rights for Obama? And do those rights include the full expression of gender identity?
The Manning case could soon get very interesting in a totally unanticipated way.