On June 3, trial proceedings began. They’ll last well into summer. What’s ongoing reflects much more than Manning alone. We’re all in this together. Freedom in America is on trial.
Post-9/11, it’s been on the chopping block for elimination. Convicting Manning of anything compromises what is too important to lose.
He deserves praise, not prosecution. His fate is ours. That’s what’s fundamentally at stake. Everyone stands to win or lose with him.
In his February plea statement, he said he wanted to “spark a domestic debate on the role of the military and our foreign policy in general as it related to Iraq and Afghanistan.”
Americans have a right to know the “true costs of war,” he stressed. He called war logs given WikiLeaks “some of the most important documents of our time.”
He chose ones he believed “wouldn’t cause harm to the United States.” Washington’s “obsessed with capturing and killing people,” he said.
He exposed lawlessness. He reflects justifiable resistance. Francis Boyle calls it “our Nuremberg moment US government officials are the outlaws,” he says.
Marjorie Cohn calls Manning’s heroism “uncommon courage.” He “fulfilled his legal duty to report war crimes,” she said.
Enshrined in the US Army Subject Schedule No. 27-1 is ‘the obligation to report all violations of the law of war.’
International, constitutional and US statute laws are clear and unequivocal. US Army Field Manual (FM) 27-10 provisions incorporate Nuremberg Principles, Judgement and the Charter, as well as the 1956 Law of Land Warfare.
FM’s paragraph 498 says any person, military or civilian, who commits a crime under international law is responsible for it and may be punished.
Paragraph 499 defines a war crime. “Every violation of the law of war is a war crime,” it states.
Paragraph 500 refers to a conspiracy, attempts to commit it, and complicity with respect to international crimes.
Paragraph 509 denies the defense of superior orders in the commission of a crime.
Paragraph 510 denies the defense of an “act of state” to absolve them.
These provisions apply to all US military and civilian personnel. No one’s exempt throughout the military and civilian chain of command up to where the buck stops.
Under the Constitution’s Supremacy Clause (Article VI, paragraph 2), all international laws and treaties are the “supreme Law of the Land.”
Crimes of war, against humanity and genocide demand disclosure. Manning was legally obligated to reveal them. He acted legally and responsibly. Prosecuting him for doing so mocks rule of law justice. It makes it a four-letter word.
Manning faces 22 charges. He pleaded guilty to 10 lesser ones. He denied 12 greater ones. Most serious is aiding the enemy. Doing so is treason. It’s a capital offense.
It’s separate from the main accusation against him. He’s charged with leaking classified information to people unauthorized to receive it. The ACLU says doing so “raises enormous problems.” Convicting him under “these circumstances would be unconstitutional.”
At issue is posting alleged intelligence information online. Prosecutors say doing so aids Al Qaeda. They don’t claim Manning did so intentionally or intended to.
They claim he “indirectly” did because documents he supplied appeared on WikiLeaks’ web site. Anyone can access it. So can Al Qaeda.
Manning, they say, knew that. They charged him with violating Article 104 of the Uniform Code of Military Justice (UCMJ).
It states that “any person who gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”
Article 104 isn’t limited to sensitive or classified information. It prohibits all unauthorized communications or contacts with the enemy – direct or indirect.
“The implications of the government’s argument are breathtaking,” says ACLU. Everyone is potentially vulnerable.
Included are whistleblowers, journalists doing their job, sources they use, editors they report to, lawyers they consult, others advising them, anti-war activists, bloggers, and anyone challenging government policies.
Free expression, the press and other fundamental freedoms are threatened. At perhaps the most perilous time in world history, exposing vital truths becomes more urgent than ever.
Suppressing them by intimidation and prosecutions prevents doing so. Sunshine is the best disinfectant. Fundamental freedoms are threatened.
Post-9/11, they’ve been gravely compromised. Manning’s trial reflects Washington’s attempt to eviscerate them further.
Free expression is fundamental. Without it all other rights are endangered. Obama’s waging war to destroy it. He’s targeted more whistleblowers than all his predecessors combined.
He’s done so throughout his tenure. He acts without justification. He governs lawlessly, repressively and secretly.
Openness and transparency are verboten. Secrecy defines his administration. It reflects Manning’s trial.
The Center for Constitutional Rights (CCR) challenged it. On April 17, it headlined “Press and Public Denied Access to Documents in Bradley Manning Case,” saying:
“Today, the Court of Appeals for the Armed Forces (CAAF) rejected claims in a lawsuit by the Center for Constitutional Rights challenging government secrecy around” Manning’s court martial.
CCR sued on behalf of journalists. At issue is the public’s right to know. They “challenged the fact that important legal matters in the pre-trial proceedings have been argued and decided in secret.”
The court rejected the claims on the grounds that military appellate courts lack jurisdiction to address the scope of public access until a trial is over and the sentence has been issued.
“The decision was 3-to-2, issued over two vigorous dissents.” CCR senior attorney Shayana Kadidal argued the case.
“Today’s decision flies in the face of decades of First Amendment rulings in the federal courts that hold that openness affects outcome – that the accuracy of court proceedings depends on their being open,” she said.
Bradley Manning’s trial will now take place under conditions where journalists and the public will be unable as a practical matter to follow what is going on in the courtroom.
That ensures that any verdict will be fundamentally unfair, and will generate needless appeals afterwards if he is convicted.
Dissenting judges said this decision “leaves collateral appeal to (civilian) courts as the sole mechanism to vindicate the right to a public trial beyond the initial good judgment of the military judge. This is unworkable and cannot reflect congressional design or presidential intent.”
On May 22, CCR headlined “Constitutional Rights Attorneys, Media Challenge Secrecy of Manning Court Martial in Civilian Court.”
CCR filed a complaint and motion for preliminary injunction. It did so in Baltimore federal district court. It challenged government secrecy. Maintaining it spurns the public’s right to know.
CCR’s Kadidal called civilian courts the last option. “If this lawsuit fails,” she said, secrecy will triumph over openness. Journalists and others won’t have access they deserve.
On Manning’s trial day one (June 3), CCR reported “Still no meaningful access.” Denying it makes proceedings farcical.
Unsurprisingly, the court has refused to set aside two dedicated seats for the crowd-sourced stenographers the public and press have raised the funds to pay.
Freedom of the Press Foundation (FPF) campaigned for permission. FPF said trial judge Colonel Denise Lind granted the right to stenographically transcribe the trial from the media room.
However, no press passes were issued. The military media desk stonewalled FPF’s request. On June 3, one FPF stenographer got access. A borrowed press pass was used.
Transcribing proceedings requires full access. Two stenographers are needed. The process is too grueling for one.
All the opinions that had been released via FOIA a few weeks ago have now inexplicably been taken down from the site.
The public’s right to full disclosure is seriously compromised. Obama wants proceedings “as opaque and inaccessible as possible.”
The Reporters’ Committee on Freedom of the Press will be filing an amicus brief this week in the new Center for Constitutional Rights federal case challenging the public’s lack of meaningful access to the trial and trial documents. Oral argument in that case will be in two weeks, on June 17.
From the day Manning was arrested, the entire process against him “has been fundamentally flawed and illegitimate.” It reflects the worst of police state justice.
CCR president emeritus Michael Ratner believes Manning’s trial will last 12 – 16 weeks. Much will go on secretly. Prosecutors plan on about 150 witnesses. Twenty-eight will give secret testimony – 24 partly, four completely.
Doing so is outrageous. According to Ratner, they’ll discuss uploaded WikiLeaks documents. They’ll include information Manning provided. They’re available online. Anyone can access them.
Washington considers them classified and secret. They won’t be openly discussed or shown in court. It’s part of prosecutorial secrecy. It mocks judicial fairness.
Ratner calls Manning’s trial one of the most punitive in US history. “It’s one of the most secret. It’s one of the most unfair.” It’s unconscionable.
Imagine, said Ratner, war criminals remain unaccountable. Truth-telling is on trial. Manning should be honored, not prosecuted. Justice is egregiously denied.
Convicting him will be used against Julian Assange. Washington wants him extradited to America. Reports suggest a sealed indictment awaits him. If he’s brought here, he’ll be imprisoned and never heard from again, said Ratner.
Secrecy prevents judicial fairness. It flouts democratic principles. America never was beautiful. It’s never been a democracy. For sure it’s not one now.
Manning’s trial represents the worst of police state justice. It reflects deplorable deplorable judicial unfairness. It reveals tyranny up close and personal. It shows what everyone’s up against. There’s no place to hide.
A Final Comment
His opening statement stressed Manning’s humanism. He’s “not your typical soldier,” he said. He wore “customized dog tags that read ‘humanist.’ He strove to help his unit, wanting everyone to come safely every day, but he wanted the locals to go home safely every day too.”
He wanted to make a difference and tried. He believed information too important to conceal should be made public. He felt obligated to do so.
Exposing wrongdoing is fundamental. Doing the right thing is its own reward. Testimonies began after lunch. Many more trial days remain.
Pre-trial, Obama pronounced Manning guilty by accusation. He said so publicly. He sealed Manning’s fate.
What military or civilian judge would dare overrule the president and commander in chief? Who’d have the chutzpah to do so? How harsh the verdict will be remains to be seen.
Prosecutors ruled out the death penalty. Decades in prison or life seems likely. By August or September we’ll know.
America reaches for new depths. Responsible officials deserve eternal hell. They deserve a lower level Dante forgot. Nations that punish their best lose all legitimacy. Doing so shows what we’re all up against.
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Stephen Lendman lives in Chicago and can be reached at [email protected] His new book is titled How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening. http://www.progressiveradionetwork.com/the-progressive-news-hour/