My View of Chelsea (FKA Bradley) Manning's Sentence

NOTE: due to Manning's own request to be referred to by the name of Chelsea and as being of female gender, the original text has been slightly updated on August 23, 2013.

Today, Chelsea Manning (formerly known as Bradley and of male gender through the massive mass media reporting) received her sentence after having been declared guilty on 20 of the 21 charges on which she had been put before military court (several of which she confessed to) for leaking an abundance of classified material, among that the infamous diplomatic cables, to Wikileaks. She was acquitted on the charge of aiding the enemy, which potentially could have motivated life or even a death sentence. The prosecutor had moved for 60 years out of the originally 136, eventually reduced to 90, total maximum years for the crimes for which she was convicted, but the judge settled on a maximum 35 years in military prison (of which she has to serve a third) – some commentators reporting "a minimum of 5.2 years in prison with a 32 year maximum" – without explicit motivation. Commentators, however, refer to Manning's age, her confession, and plea for forgiveness and, not least, the brutal way in which she was treated at the first extended phase of her arrest as reasons for reducing the sentence. The general guess is that counting everything, she may be out in 10 years time from now. The prosecutor has expressed dissatisfaction and stated that the sentencing will be appealed. See here, here, here, here, here, here, here, here, here, here, here, just to name a few of the sources available.

Commentators are very varied in their responses, but many on the side of things that I spontaneously sympathize with are making the point that the sentence is overly harsh compared to (a) US soldiers convicted for war crimes, or (b) other people convicted for leaking military or otherwise classified info to the press. The (a) type comment received some extra spunk this tuesday, when the US Director of Justice filed for having a court granting immunity to George W. Bush, Richard Cheney, Donald Rumsfeld, Colin Powell, Condoleezza Rice and Paul Wolfowitz against allegations of unlawfully instigating the war in Iraq in a recent suit. Now, I agree in a way with both these types of comments with regard to the unfairness and lack of legal security they expose, and I'm on the record as stating that Manning's actions were not only morally permissible, they were in fact required and admirable and have equally expressed my horror at the infamous video of a US helicopter crew laughing and joyfully gunning down civilians in Iraq. But at the same time I would like to insist on a distinction being made here between normative comments and factual ones. Moreover, among the normative comments, one must distinguish between those pertaining to the single case and those pertaining to the institutional order handling said single case (in this case the US system of criminal justice).

So, normative comments are about, simply, whether or not the sentence is a good thing. Given the moral permissibility of Manning's action to leak the material she did, the answer is simple: no, of course not! But this is mainly because from this same point of view, there should have been no conviction, no court proceedings and no arrest in the first place.

At the same time, this attitude, as I mentioned in my second post on Manning's leaks, is inconsistent with viewing Manning's actions as morally justifiable civil disobedience (since that assumes unlawfulness and that the offender takes the legal consequences). This latter analysis, which I support, brings into the picture the existence of a system of law that there is a value in upholding and allow to rule. Now, it may very well be that such rule of law is unsystematic in the US context, and that, e.g., president Obama has been hypocritical when condemning Manning's action more harshly than those of, e.g. Daniel Ellsberg, who leaked the infamous pentagon papers. However, that does not justify undermining rule of law even more. It is quite clear that Manning committed criminal acts when leaking, no matter how morally justified these leaks were. It may very well be that the system of law defining these crimes is perverted in various ways, for instance in that it lets US soldiers who commit heinous war crimes (or political leaders who unlawfully order entire wars, for that matter) off the hook much too easily, but that is merely an argument in favour of harsher sentences in those cases (in the political case, equality before the law and due process in holding politicians legally accountable on the same condition as anyone else), not acquittal, amnesty or a milder sentence in Manning's case. Moreover, this is still a system where everyone, Manning included, had the possibility to understand the legal standing of her actions and what she could to expect in consequence. Much, much worse would be a system were law is just a cheap show, and court verdicts vary according to the momentary whims of those that happen to be in power to enforce whatever preferences they happen to entertain at the moment. That would be the rule where the only law is that of the strongest and no order or system whatsoever exists for anyone, except briefly for those fortunate to be allied with whoever is in momentary power in everyone's war against everyone else; where the life of the common person is "solitary, poor, nasty, brutish, and short" as Thomas Hobbes so famously remarked. So, in sum, while I may support the claims that there are perversions in the US legal system in its view on crimes connected to the military and imperfections and hypocricy in its application, this does not justify even more of the same.

Now, none of this is to say that Manning's sentence is legally correct or reasonable; I know far too little about the US legal system to be a judge of that. But it seems to me perfectly reasonable (a) that she was convicted for crimes due to her leaks and (b) that she received a substantial sentence for that. This in no way reduces the moral worth of her action to leak, it just underscores that sometimes it is one's moral right and duty to break the law and that this may hold even with regard to laws that are in general quite reasonable (like those protecting military secrets in a world where military conflict is abundant). This is the nature of civil disobedience and, according to standard notions of the conditions for justified such disobedience, you should also face the legal consequences as part of your action. Having reached that conclusion, we can then debate how hard the sentence should be in a case like this (this is very much open to moral argument and judicial discretion in the US legal system as I understand it) and, even more, how soon a pardon should be extended, but those are matters that I leave open.

Instead I close by moving from the normative discussion to a factual one: how should Manning's sentence be assessed in relation to realistic expectations?  In fact, and this is the end of my line of comment, my impression is that the sentence is actually much milder than what was to be expected given the circumstances. These circumstances include: (a) the guilty verdict, (b) the American fondness of (irrationally) harsh sentencing in criminal law, (c) the claim of the prosecution for almost double the jail time eventually settled for by the judge, (d) the maximum sentence for the crimes for which Manning was convicted being almost three times what she received, (e) the nature and circumstances of the actions: leaking military information in the midst of military conflict, (f) the (by me alleged) fact that a large portion of US citizens probably simplistically view Manning as a common traitor and wouldn't have cared less if she had been locked away for good (no nice view of mine of the American people, but hey, I didn't choose they public relations agency, they did – in free elections!) – a harsh sentence thereby bringing no political risk from a legitimacy point of view.

In short: Manning's actions were morally right, required and admirable. It is at the same time quite in order that she has been convicted of crimes and sentenced for that and Americans should all be thankful for living in a society where rule of law prevails (however imperfectly) even when having such unpleasant consequences, albeit it would be even better if US military war criminals were convicted and sentenced proportionally to the seriousness of their crimes, and the President refrained from making statements possibly inconsistent with case law. The reasonableness of the sentence can surely be debated (not least, I would say, taking into account the fact that Manning's intention was to expose serious criminal behaviour that she had good reason to believe would for strategic military reasons have received no attention, had she tried to move the matter internally according to due military process), but given the circumstances the actual sentence is in fact a very, very pleasant surprise! Even more, given these very same circumstances, my reading is that the judge is actually making a (however subtle) statement in Manning's favour!