After overseeing the aggressive prosecution and near-seven- year incarceration of Army whistleblower Chelsea Manning, President Obama—in one of his last acts in office—commuted all but four months of her remaining sentence but ignored the fact that he had taken no action on the war crimes that Manning revealed. At his final news conference, Obama explained his reasons for commuting Manning’s record-setting 35-year sentence for leaking classified information to the public. (Manning is scheduled to be released on May 17.) “Chelsea Manning has served a tough prison sentence,” Obama said. “It has been my view that given she went to trial; that due process was carried out; that she took responsibility for her crime; that the sentence that she received was very disproportionate relative to what other leakers had received; and that she had served a significant amount of time; that it made sense to commute and not pardon her sentence. … I feel very comfortable that justice has been served.”
But there has been no justice for the Iraqis and Afghans whose unjustified deaths and mistreatment were exposed by the then- 22-year-old Army private, known at the time as Bradley Manning. An Army intelligence analyst in Iraq, Manning sent hundreds of thousands of classified files, documents and videos, including the “Collateral Murder” video, the “Iraq War Logs,” the “Afghan War Logs” and State Department cables, to WikiLeaks. Many of the items that she transmitted contained evidence of war crimes. In an online chat attributed to Manning, she wrote, “If you had free rein over classified networks…and you saw incredible things, awful things…things that belonged in the public domain, and not on some server stored in a dark room in Washington DC…what would you do?”
Manning went on to say, “God knows what happens now. Hopefully worldwide discussion, debates, and reforms… I want people to see the truth… because without information, you cannot make informed decisions as a public.” The Collateral Murder video depicts a U.S. Apache attack helicopter killing 12 people, including 2 Reuters journalists, and a passerby who stopped his van to rescue the wounded. Also wounded were two children in the van. Finally, a U.S. tank drove over one of the bodies, cutting the man in half. These acts constitute three separate war crimes under the Geneva Conventions and the U.S. Army Field Manual.
Manning fulfilled her legal duty to report war crimes. She complied with her duty to obey lawful orders but also her duty to disobey unlawful orders. Enshrined in the U.S. Army Subject Schedule No. 27-1 is “the obligation to report all violations of the law of war.” Manning went to her chain of command and asked them to investigate the Collateral Murder video and other “war porn,” but her superiors refused. “I was disturbed by the response to injured children,” Manning stated. She was also bothered by the soldiers depicted in the video who “seemed to not value human life by referring to [their targets] as ‘dead bastards.’”
The Uniform Code of Military Justice sets forth the duty of a service member to obey lawful orders. But that duty includes the concomitant duty to disobey unlawful orders. An order not to reveal evidence of war crimes would be an unlawful order. Manning had a legal duty to expose the commission of war crimes. Manning’s revelations actually saved lives. After WikiLeaks published her documentation of Iraqi torture centers established by the United States, the Iraqi government refused Obama’s request to extend immunity to U.S. soldiers who commit criminal and civil offenses there. As a result, Obama had to withdraw U.S. troops from Iraq. Although Manning pled guilty to 10 offenses that carried 20 years in prison, military prosecutors insisted on pursuing charges of aiding the enemy and violation of the Espionage Act, that carry life in prison. Manning was not allowed to present evidence that she had been acting in the public interest. When she entered her plea, Manning stated, “I believed if the public, particularly the American public, could see this it could spark a debate on the military and our foreign policy in general as it applied to Iraq and Afghanistan.” She added, “It might cause society to reconsider the need to engage in counter terrorism while ignoring the situation of the people we engaged with every day.” Colonel Denise Lind, the presiding judge, found Manning not guilty of the most serious charge—aiding the enemy—because the evidence failed to establish that Manning knew information she provided to WikiLeaks would reach Al Qaeda. A conviction of aiding the enemy would have sent a chilling message to the media and to whistleblowers that leaked classified information could lead to sentences of life in prison. That would deprive the public of crucial information. Although that draconian possibility was averted, Manning still was convicted of 20 crimes, including Espionage Act offenses, itself an ominous warning that could deter future whistleblowers from exposing government wrongdoing. Traditionally, the act has been used only against spies and traitors, not whistleblowers. Yet Obama used the Espionage Act to prosecute more whistleblowers than all prior administrations combined. Judge Lind, who sentenced Manning to 35 years in prison, reduced her sentence by 112 days because of the mistreatment she suffered in custody. For the first 11 months, Manning was held in solitary confinement and subjected to humiliating forced nudity during inspection.
In fact, Juan Mendez, United Nations Special Rapporteur on Torture, characterized her treatment as cruel, inhuman and degrading. He said, “I conclude that the 11 months under conditions of solitary confinement (regardless of the name given to [her] regime by the prison authorities) constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the Convention against Torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.”
Mendez could not conclusively say Manning’s treatment amounted to torture because he was denied permission to visit her under acceptable circumstances. Mendez also concluded that, “imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of [her] right to physical and psychological integrity as well as of [her] presumption of innocence.”
Manning, who began her gender transition following her sentencing, has been denied critical and appropriate treatment related to her gender identity at various points during her imprisonment. Her long sentence and harsh incarceration also drew protests from other human rights advocates.
“Chelsea Manning exposed serious abuses, and as a result her own human rights have been violated by the U.S. government for years,” said Margaret Huang, executive director of Amnesty International USA. “President Obama was right to commute her sentence, but it is long overdue. It is unconscionable that she languished in prison for years while those allegedly implicated by the information she revealed still haven’t been brought to justice.” “Instead of punishing the messenger, the U.S. government can send a strong signal to the world that it is serious about investigating the human rights violations exposed by the leaks and bringing all those suspected of criminal responsible to justice in fair trials,” said Erika Guevara-Rosas, Americas Director at Amnesty International.
The commutation was the culmination of efforts by the Chelsea Manning Support Network, her legal team, and hundreds of thousands of people who signed petitions demanding her release. Indeed, Kathleen Gilberd, executive director of the Military Law Task Force of the National Lawyers Guild, stated, “While Chelsea’s freedom is long-overdue, we are gratified that she has been afforded some measure of delayed justice. There is no doubt that the tremendous outpouring of public support and organizing for commuting the sentence contributed to this outcome. Still,” she added, “we remain critical of a government that seems more intent on prosecuting those who expose war crimes than those who commit them.”
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and on the advisory board of Veterans for Peace. Her books include Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd) and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website at http://marjoriecohn.com.