Fair Trial for Manning Now Impossible

The credibility of the military justice system is being undermined by the prosecution of Bradley Manning. His abusive punishment without trial violates his due process rights, his harsh treatment in solitary confinement violates the prohibition against cruel and unusual punishment, and now the commander in chief has pronounced his guilt, making a fair trial impossible. A Bradley Manning exception to the Bill of Rights is developing as the Obama administration seeks Manning’s punishment no matter what constitutional protections they violate.

On Thursday, April 21, 2011, in San Francisco, a group of Bradley Manning supporters protested the prosecution of Manning at a Barack Obama fund-raising event. One of Manning’s supporters was able to question the president directly afterward, and during the conversation, Obama said on videotape that Manning was guilty.

Can you imagine if the supreme leader of Iran, Ayatollah Khamenei, pronounced an Iranian military whistleblower “guilty” before any trial was held? Khamenei is the commander in chief of all armed forces in Iran, just as President Obama is the commander in chief of the U.S. armed services. Would anyone in the United States think that a trial before Iranian military officers that followed such a pronouncement could be fair? The U.S. government would use the situation to make propaganda points about the phony justice system in Iran.

President Obama’s pronouncement about Manning—“He broke the law”—amounts to unlawful command influence, which is prohibited in military trials because it is devastating to the military justice system. Manning will be judged by a jury of military officers in a military court where everyone involved follows the orders of the commander in chief. How are these officers going to rule against their commander in chief, especially after Manning has been tortured in solitary confinement for almost a year? Any officer who finds Manning “not guilty” will have no chance of advancing his or her career after doing so.

Article 37 of the Uniform Code of Military Justice makes undue command influence unlawful. Unlawful command influence has been called “the carcinoma of the military justice system” and is often described as “the mortal enemy of military justice” [.pdf]. The importance of the command structure in the military makes command influence a threat to fair trails, and “because the inherent power and influence of command are necessary and omnipresent facets of military life, everyone involved in both unit command and in military justice must exercise constant vigilance to protect against command influence becoming unlawful” [.pdf].

Accordingly, “unlawful command influence occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.” Further, even the “appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial” [.pdf]. The commander in chief pronouncing guilt before trial is an unprecedented case of unlawful command influence.

When unlawful command influence occurs, a heavy burden is put on the prosecution to “prove beyond a reasonable doubt that: (1) the facts upon which the unlawful command influence is based are untrue; (2) those facts do not constitute unlawful command influence; or (3) the unlawful command influence will not affect the proceedings.” Since President Obama is on videotape announcing the finding of guilt it will be impossible to prove either of the first two points. To prove the third point will require the court to enter into a charade where officers claim they are not influenced by their commander in chief. In reality, the president’s announcement will influence every officer who wants to continue to advance in his or her career. And since Manning has already been punished severely before trial, officers will be even less likely to find Manning not guilty because that would raise questions about his abusive treatment.

Military case law indicates that “pretrial publicity itself may constitute unlawful command influence.” When the president speaks, it results in national media attention (a Google search for “Obama Manning guilty” produced 1.5 million stories on April 24). Of course, the president’s statement of Manning’s guilt was not the only pretrial publicity in Manning’s case. In addition, the brutal treatment Manning has received during his detention has also received widespread media attention. The combination of this mistreatment and the president’s statements shows that the military from the Quantico command to the commander in chief saw Manning as guilty and wanted him punished harshly.

Military courts have held over and over that if unlawful command influence is proven then dismissal of the case is appropriate. (See United States v. Douglas, 68 M.J. 349 (2010) [.pdf] and the cases cited therein.) “[D]ismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings.” There is no question Manning has been prejudiced, and it is hard to imagine how the proceedings can be cleansed of this unlawful command influence, so there is no useful purpose in continuing.

The White House made an inept attempt to change the obvious meaning of the president’s statement. Politico reports: “White House spokesman Tommy Vietor said Obama was in fact making a general statement that did not go specifically to the charges against Manning. ‘The president was emphasizing that, in general, the unauthorized release of classified information is not a lawful act,’ he said Friday night. ‘He was not expressing a view as to the guilt or innocence of Pfc. Manning specifically.’” This clarification is inept because Obama was quite specific in his comments, saying, “He broke the law.”

Unlawful command influence causes “exceptional harm … to the fairness and public perception of military justice when it does arise” [.pdf]. This harm is magnified in the case of Bradley Manning because of the severe mistreatment he has received in Quantico. This is a case where punishment in Quantico and a finding of guilt by the commander in chief both came before trial. The sooner this prosecution ends, the less damage will be done to the reputation of the military justice system.