90.9 WBUR - Boston's NPR news station
Top Stories:
PLEDGE NOW
Law

In this photo, Army Pvt. Chelsea Manning is pictured on Aug. 20, before her sentencing, demotion from private first class and announcement that she no longer wished to be known as Bradley Manning. The 35-year prison sentence for Manning strikes Nancy Gertner as “disproportionate.” (Patrick Semansky/AP)

Forgive this title. It is a bit of a tease. In fact, I am completely skeptical of commentators who second-guess a judge’s decision in sentencing.

When I teach sentencing — previously at Yale Law School and now at Harvard — I have students engage in an exercise. I provide them with the documents involved in a real sentencing, and I ask them what sentence they would have selected.

There is always a caveat: These were sentences based on paper, not the real human being whose reactions you can observe, whose words you hear and whose affect you experience. When I brought the students into my court to see a real sentencing, they understood the difference.

Before Manning, the longest sentence ever served for disclosing classified information to the media was two years.

So I make these comments about the sentencing of Chelsea Manning, who came to prominence as Bradley Manning [see editor's note below], with two qualifications: First, I do not have all of the facts that were before the sentencing judge. What I know is gleaned from media accounts of Manning’s sentencing on multiple counts, including violations of the Espionage Act, for copying and disseminating classified military field reports, State Department cables and assessments of detainees held at Guantanamo. Media accounts are obviously filtered through one set of lenses: a reporter who may or may not be schooled in military law.

Second, as I told my students, there is a substantial difference between a sentence based on paper, and one based on a human being. (Even the Supreme Court has come to realize that a trial judge has a unique vantage point on the sentencing facts, to which appellate courts must defer in reviewing a sentence.)

To frame the issue further: Newspapers reported that Manning faced “up to 90 years in prison.” The comment is absurd. To put it charitably, maximum penalties are set up to deal with the worst version of an offense, and in most cases the sentence will be much, much lower.

In this case, that maximum was appropriately affected by the judge’s decision to acquit Manning of the most serious charge, giving aid and comfort to the enemy. That was as it should be. Whistleblowing is not a zero-sum game; if I criticize my country or release documents that show wrongdoing, I may well help the enemy. But if there is no evidence of actual “aid,” that “harm” is what we call free speech.

In the end, the judge sentenced Manning to 35 years; the prosecution had asked for 60. These numbers — 60, 35 — are contrivances. They are not keyed to rehabilitation. They may well be posited for deterrence but more likely were settled upon without anyone carefully considering what it would take to deter. Or, if they reflect retribution — just deserts — how do they compare with other sentences? We don’t consider her deeds in a vacuum; we have to look at what other like offenders get for similar or even worse offenses. Has anyone ever received 35 years under these circumstances?

Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy and Technology Project, issued this statement:

“When a soldier who shared information with the press and public is punished far more harshly than others who tortured prisoners and killed civilians, something is seriously wrong with our justice system.”

What about the other factors? Namely Manning’s state of mind, her obvious mental impairment, the anxiety occasioned by having to hide her gender identity under the Army’s “Don’t Ask, Don’t Tell” policy.

This is not to say that that she should not be punished at all. It is to say that there is a difference between someone who makes decisions without impairments and someone who makes decisions with impairment: We consider the latter less culpable — not innocent.

We should also consider her motives. We respond differently to crimes depending on why they were committed: for profit, out of a misplaced sense of public spirit, to harm another, or in order to alleviate harm. Manning did what she did to uncover what he considered injustices in Afghanistan and at Guantanamo. She may well have been wrong, but that her motivations were in good faith seems clear.

At the same time, we should consider the harm her actions actually caused. Again, we do that all the time in sentencing — the victim impact statement, the measure of the size of the fraud, etc. A recent article suggested that Manning caused less harm than the government initially noted, perhaps because of the ameliorative measures it took after the leak. The damage allegedly inflicted by the release of the Pentagon papers was only political; it was an historical document. This harm is immediate, but is it enough to justify a 35-year sentence?

And what of the benefits Manning effected, what she exposed, what she demonstrated — endless detention without trials, the human costs of the Afghanistan war, etc. Indeed, we have crafted a criminal justice system based on whistleblowing, giving credit when a citizen gives information about wrongdoing. We call them “informants,” and as the recent Bulger trial shows, they get all sorts of benefits — lesser sentences — even when they commit murder. We balance their crimes against the value they provide in exposing other wrongdoing.

How does the entity to which the information was leaked figure into the equation? Is there a difference between leaking sensitive classified documents to Wikileaks, as Manning did, and giving them to The Guardian, as Edward Snowden did? Should we consider the decision to go to a reputable news organization — which would arguably exercise more judgment and restraint — less destructive?

Whistleblowing is not a zero-sum game; if I criticize my country or release documents that show wrongdoing, I may well help the enemy. But if there is no evidence of actual “aid,” that “harm” is what we call free speech.

Apparently not. In 2013, these distinctions may make no meaningful difference. As Professor Yochai Benkler noted at the Manning trial, Wikileaks was praised for releasing documents on corporate corruption in Europe, rampant censorship in China and extrajudicial killings in Kenya. Until the Manning disclosures, WikiLeaks had come to be seen as a legitimate venue for whistleblowers.

A court should also consider the nature of prior imprisonment. Manning was reportedly abused in pretrial detention and was held in solitary confinement under conditions far, far more onerous than the usual detainee. According to the United States Special Rapporteur for Torture, Manning’s detention was “cruel, inhuman and degrading.” So arguably the time in custody counted more than the usual — a day was more than a day.

Before Manning, the longest sentence ever served for disclosing classified information to the media was two years, according to Liza Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program. Manning’s 35-year sentence, she told The Guardian, was comparable to those handed down for paid espionage on behalf of enemy countries.

Professor Benkler called the sentence “outrageous,” and a far greater threat to the American Constitutional order than any of the disclosures she made.

It was disproportionate — to say the least — to both the offense and offender.

Editor’s note: An earlier version of this piece referred to Manning in the masculine, which is at odds with WBUR and NPR’s style choice. We have adjusted the language throughout. 

Related:

Tags: Crime, Law, Security

The views and opinions expressed in this piece are solely those of the writer and do not in any way reflect the views of WBUR management or its employees.

Please follow our community rules when engaging in comment discussion on this site.
  • George Arnold

    What punishment should be meted out to one who exposes the criminal acts of a government and its military? Apparently Judges Lind and Gertner would concur that this is and should be a punishable act.
    This, I suggest is the actual, insufficiently discussed absurdity lurking behind the seemingly reasonable, ostensibly enlightened sheen of Judge Gertner’s analysis of this narrative.

  • Rine

    Please get your names and gendered pronouns right–her name is Chelsea. Thanks!

    (It really takes so, so much away from what’s been written…and it’s insulting to Manning.)

    • http://cognoscenti.wbur.org/ Frannie Carr

      Thank you Rine. You’re right. We have updated the piece accordingly.

      • Rine

        While I appreciate the quick update (and not just a post at the bottom, but an overhaul of the piece), I truly wonder where the editors were on this. I mean…it’s kind of a big thing, got posted online, and the Facebook post is still misgendering. I hope WBUR invites people in–especially queer/trans* journalists–to talk about how to be respectful (and truthful towards peoples’ identities) while reporting.

        The way it was addressed in the note, too, is kind of insulting. “An earlier version of this piece referred to Manning in the masculine, which is at odds with WBUR and NPR’s style choice” means that you got something stylistically wrong, not that you didn’t identify a person correctly. “An earlier version of this piece misgendered Manning,” or something like that, would have been more truthful.

        Also, to do with the factual statements made in the piece: it’s not DADT that barred trans* soldiers–that addressed sexual orientation. (Not that trans* people can’t be gay, lesbian, bisexual, or queer, but to clarify that trans* has to do with GENDER, DADT has to do with SEXUAL ORIENTATION. Connected, but not the same.) In truth, the military considers trans* people to be mentally unfit to serve. So, it’s actually a medical regulation, not DADT that directly, immediately applies to trans* people in the military. (Hey, WBUR–what an opportunity to bring someone in to talk/write about trans* people in the military!)

        For more, check out the SLDN’s page on trans* people in the military: http://www.sldn.org/pages/transgender-people-and-military-service

        (TL;DR: I want to like this piece, but the fact that so much was/is wrong that, really, is not that hard to get right makes that difficult–and questions WBUR’s journalistic integrity.)

        • Oliver Wendell Holmes

          It ain’t your grampas ole army no more, Toto

  • road.rep

    The Army says his name is Bradley. And by referring to him as anything else lays the groundwork for changing his gender on my dime. If he wanted to change his gender soon, he shouldn’t have been committing crimes that would get him 35 years in prison. I’m all for letting him change his gender…..when he gets out of prison and can pay for it himself. Until then, his name is Bradley.

TOP