Why Chelsea Manning May Get Out of Jail Much Sooner Than You Think

Military analysis.
Aug. 22 2013 6:12 PM

Myths About Manning

Why Chelsea Manning may get out of jail much sooner than you think.

Private First Class Bradley Manning is escorted out of court after testifying in the sentencing phase of his military trial at Fort Meade, Maryland August 14, 2013.
Bradley (now Chelsea) Manning is escorted out of court after testifying in the sentencing phase of his military trial at Fort Meade, Md., on Aug. 14, 2013.

Photo by James Lawler Duggan/Reuters.

Let’s puncture a few myths and misunderstandings about Chelsea (formerly Bradley) Manning’s 35-year sentence.

Fred Kaplan Fred Kaplan

Fred Kaplan is the author of The Insurgents and the Edward R. Murrow press fellow at the Council on Foreign Relations.

First, the entire Manning case, from start to finish, has nothing to do with the Obama administration’s avid pursuit of leakers. The military courts operate independently of the Justice Department. If the most purebred civil libertarian were president of the United States, the Army would have gone after Manning no less relentlessly.

Manning’s leak is unprecedented, not only in its volume (700,000 classified files) but also, at least potentially, in its seriousness (the inclusion, in these files, of raw reports detailing combat operations).

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I asked two eminent scholars of military law—Gary Solis of Georgetown Law School and Eugene Fidell of Yale Law School—whether they could recall any parallels in the past century. They could come up with only one: John Walker, a U.S. Navy chief warrant officer who, in 1985, sold highly sensitive secrets to the Soviet Union. He was court-martialed and is still serving a life sentence. In another notable case, Samuel Morison, a former Navy intelligence officer, leaked classified photos of Soviet ships, taken by a secret U.S. spy satellite, to a British defense publication. But Morison had left the Navy by that point and was a civilian Defense Department official. A civilian court convicted him under the Espionage Act and sentenced him to two years in prison. Bill Clinton pardoned him on the last day of his presidency, in part because that World War I–era law had been enforced so rarely and inconsistently.

These comparisons, of course, are far from precise. Manning neither supplied a cache of documents to an enemy entity nor made any money from the deal. But this only highlights how brazen the Manning case looms in the annals of American military history. This is not “another case” of the Obama administration chasing down the source of a national security leak; it is a massive and extremely unusual violation of the Uniform Code of Military Justice.

Second, the very purpose of the military court system is very different from that of the civilian courts. As a recent study of military justice by the Congressional Research Service put it:

“In the [civilian] criminal law system, some basic objectives are to discover the truth, acquit the innocent without unnecessary delay or expense, punish the guilty proportionately with their crimes, and prevent and deter further crime, thereby providing for the public order. Military justice shares these objectives in part, but also serves to enhance discipline throughout the Armed Forces, serving the overall objective of providing an effective national defense.” (Italics added.)

Many of Manning’s supporters have complained that the military prosecutors dragged the soldier into court as an example to others. To some extent, that’s true. It’s also beside the point. Even if it were the case, as Manning’s supporters also argue, that the leaks exposed war crimes or at least did no real harm to national security, that wouldn’t matter in a military trial. Given that one function of the military justice system—a key reason for keeping it separate from the civilian justice system—is to enhance discipline across the armed forces, no Army judge would have cut slack for a soldier who had violated his or her security pledge so blatantly.

Third, in this context, and given that Manning was convicted on 20 of 22 counts, a sentence of 35 years is not excessive. More to the point, it’s very unlikely that Manning will spend anywhere nearly that long behind bars.

The presiding judge, Col. Denise Lind, could have imprisoned Manning for 90 years, had she pushed the sentencing guidelines to the max. The Army’s prosecutors urged her to send Manning to prison for 60 years, as a deterrent to others. It’s a good thing—for Manning, the legitimacy of military courts, and freedom of the press—that Lind waved off their absurd calculus. Having already acquitted Manning of the one charge (“aiding the enemy”) that carried an automatic life sentence, Lind apparently reasoned that it would be unjust to hand down a sentence amounting, for all practical purposes, to the same thing.