Chelsea Manning Appeals 35-Year Sentence For Leaking Files

from the seems-a-bit-extreme dept

Mon, May 23rd 2016 10:36am — Mike Masnick

It's been almost three years since Chelsea Manning was sentenced to 35 years in jail for leaking a bunch of State Department cables to Wikileaks in what she claims was an act of whistleblowing (though, obviously, some disagree). As we noted in the past, even if you disagree with the whistleblowing claim, the leak did lead to some important discussions about what the US government was doing in certain areas and (contrary to some hyperbolic claims) did not lead to a single death. In addition, we've pointed out that people who were flat out selling secrets to the Russians, or simply full-on terrorists, have received lighter sentences. Something does not seem at all right with that.

And now, Manning has officially appealed the conviction and sentence. The full filing is a massive 209 pages and seems to challenge just about everything about the case against Manning, and makes Constitutional arguments around the First Amendment, Fifth Amendment, Sixth Amendment and Eighth Amendment. The basic argument, however, still relies on the "whisteblower, not a spy" defense:

For what PFC Manning did, the punishment is grossly unfair and unprecedented. No whistleblower in American history has been sentenced this harshly. Throughout trial the prosecution portrayed PFC Manning as a traitor and accused her of placing American lives in danger, but nothing could be further from the truth.

PFC Manning disclosed the materials because under the circumstances she thought it was the right thing to do. She believed the public had a right to know about the toll of the wars in Iraq and Afghanistan, the loss of life, and the extent to which the government sought to hide embarrassing information of its wrongdoing. At sentencing PFC Manning took responsibility for the disclosures and admitted she should have considered other lawful ways of expressing these concerns. But she was not disloyal and did not harm anyone, nor did she intend to.

There are a lot of details in the filings, obviously, but the appeal is focused on six "errors" it claims were made in the original case:

First, as set forth in Assignment of Error I, the government violated Article 13, Uniform Code of Military Justice (UCMJ), by subjecting PFC Manning to unlawful pretrial confinement for nearly a year. The military judge correctly found Article 13 error, but did not fully credit PFC Manning for the deplorable and inhumane conditions, which were tantamount to solitary confinement. For this alone the charges and specifications should be reversed or her punishment substantially reduced.

Second, as set forth in Assignments of Error II, III, and IV, the government overcharged the case to expose PFC Manning to excessive punishment. This appeal challenges the convictions related to 18 U.S.C. §§ 641, 1030(a)(1) and 793(e). Rather than charging PFC Manning for mishandling classified information, a charge she admitted to, the government charged her with stealing databases (Section 641), using unauthorized software on a classified computer system (Section 1030(a)(1)), and disclosing classified information with knowledge it might harm the national defense (Section 793(e)). As addressed below, the military judge misapprehended and misapplied the law with respect to these statutes, which unfairly inflated the penalty landscape.

Third, in Assignment of Error V, the defense challenges the military judge’s consideration of aggravation evidence that was not directly related to or resulting from the offenses. And finally, in Assignment of Error VI, the defense urges this Court to exercise its broad powers to reconsider the appropriateness of PFC Manning’s sentence to confinement. These last two Assignments of Error are at the core of PFC Manning’s appeal.

While the filing claims the last two errors are at the core, I'm probably most interested in errors II, III and IV, which are basically arguing that the government was abusing the CFAA to claim that what Manning did was much worse than what she actually did. Abusing the CFAA to lock people up for simple actions? Where have we heard that one before....

Meanwhile, the ACLU has filed an amicus brief as well, hitting hard on the ridiculousness of the Espionage Act and its use in this case:

It is a pervasive feature of our democracy that government and military officials at all levels regularly disclose what may broadly be considered “information relating to the national defense.” They do so in pursuit of various agendas. Some disclose information to further the government’s preferred messages, some to pursue private agendas, and some to inform the public of information critical to democratic accountability. Until Private First Class (“PFC”) Manning was convicted before a general court-martial of six counts of violating the Espionage Act, 18 U.S.C. § 793(e), however, no person in the history of this nation had been sentenced to decades in prison for the crime of disclosing truthful information to the public and press.

The conviction and sentence of PFC Manning under the Espionage Act must be overturned for two reasons. First, the Espionage Act is unconstitutionally vague, because it provides the government a tool that the First Amendment forbids: a criminal statute that allows the government to subject speakers and messages it dislikes to discriminatory prosecution. Second, even if the Act were not unconstitutional in all its applications, the military judge’s application of the Act to PFC Manning violated the First Amendment because the military judge did not permit PFC Manning to assert any defense that would allow the court to evaluate the value to public discourse of any of the information she disclosed. The military judge therefore failed to weigh the public interest in the disclosures against the government interest in preventing them, as required by the First Amendment. For these reasons, PFC Manning’s conviction for violating the Espionage Act should be vacated.

I have no idea what, if any, chances there are that this appeal is successful. Without knowing that much about how military court works, I'm still guessing the chances of success are... slim.

Manning-Filed-Brief (PDF)Manning-Filed-Brief (Text)

Aclu-Manning-Amicus-Brief (PDF)Aclu-Manning-Amicus-Brief (Text)

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Filed Under: appeal, cfaa, chelsea manning, espionage act

26 Comments

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OldMugwump (profile), 23 May 2016 @ 10:52am

Pardon her
What she needs, and deserves is a Presidential pardon.

Which means she's in for at least another 8 years.

Unless a miracle happens and Johnson wins. But stranger things have already happened in this year's campaign.

Johnson/Weld '16! [or Weld/Johnson, whichever.]
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Anonymous Coward, 23 May 2016 @ 10:58am

I thought Military cases were unappealable. But then again, my knowledge of the Military court system is very slim.
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RainbowboomX (profile), 23 May 2016 @ 11:04am

Re: Pardon her
or if the green party wins instead, but seriously the only better possibility of happening is that if the green party, the constitutional party, and the libertarian party were to siphon off enough voters from both the major parties, then it could be possible for a third party to win.
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RainbowboomX (profile), 23 May 2016 @ 11:06am

Re: Re: Pardon her
Which in any case in order for them to possibly win is that they need to get known by a large portion of the population that does not know about their existence. In short spread the existence of those third parties.
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Violynne (profile), 23 May 2016 @ 11:28am

Manning can't appeal.

He* was convicted by a military court, not a criminal court.

While many will argue his chances were slim because of a stacked deck (along with me), it's irrelevant.

The rules are much different. He should have waited until he was discharged before blowing the whistle, to which 1) he could have found more secure ways of whistle blowing and 2) he would be facing charges in criminal court, not military.

I wish her luck, but it's pointless. No way is any judge going to grant an appeal.

*Manning was male during the whistle blowing arena, hence the use of "his" in the context during that time.
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Peter Orlowicz (profile), 23 May 2016 @ 11:54am

Re:
Procedurally, appeals from a military court-martial go to the service court of criminal appeals (in this case, the Army Court of Criminal Appeals). The judges on the CCA are uniformed military officers, not civilians. If PFC Manning loses at the CCA level, she may file a petition for review with the U.S. Court of Appeals for the Armed Forces, which has civilian judges appointed for fixed terms (not lifetime appointments) and hears appeals in criminal cases from all the military services.

However, unlike other federal appeals courts, CAAF doesn't have to hear a case on petition by the accused. As far as I know, CAAF is the only court in the federal system that has this kind of discretionary jurisdiction over whether it accepts cases. (Article 67 of the UCMJ specifies that CAAF must review all cases where the accused was sentenced to death, and all cases where a service Judge Advocate General requests review, but only reviews petitions from the accused for good cause).
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Anonymous Coward, 23 May 2016 @ 12:12pm

She is asking the criminal government that went out of its way to punish her for daring to make them look bad for clemency.

She would be better off fleeing to a country that would not give her up like snowden did.
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Anonymous Coward, 23 May 2016 @ 12:14pm

Re: Pardon her
revolutions tend to see political prisoners freed.
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Fin, 23 May 2016 @ 1:42pm

Re:
That's not how it works. You should assume she not he. just fyi.
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Anonymous Coward, 23 May 2016 @ 2:00pm

Re: Pardon her
No, What Manning needs is those that prosecuted this farce to replace her within that cell. For the children, of course. And to stop terrorists.
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Anonymous Blowhard, 23 May 2016 @ 4:56pm

Classified Unprofessional
The worst consequence of these particular leaks was to expose how unprofessional and morally bankrupt everyone involved looks. Yes it's funny that Gadafi travels with a nurse who's probably a prostitute but you don't send jokes around to your coworkers by email. Keeping information about corrupt governments screwing over their people is a shitty thing to do. I would hope that representatives of my county would be better stewards but I guess they're not. Blaming some fucked up employee for exposing "secrets" in this case is really a stretch.
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Uriel-238 (profile), 23 May 2016 @ 6:18pm

Manning continues to serve as an example...
That justice is not had in the United States legal system, rather it is and continues to be an engine by which status quo is preserved, and revenge is exacted on those who cross those who have power, even if action was taken for benign or even noble reasons.

This nation is not the United States I was promised as a child. I resent it every day.
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Anonymous Coward, 23 May 2016 @ 8:48pm

Unfortunately I have a better chance of winning the Powerball jackpot 6 times this month than Manning has of getting a fair appeal, if she's even granted an appeal.
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Anonymous Blowhard, 23 May 2016 @ 9:40pm

Re: Manning continues to serve as an example...
A harsh and sad reality. I'm afraid we are no longer in a position to consider ourselves a member of the free world. A lot of Americans are content that it's not as bad as North Korea.
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the questioner, 24 May 2016 @ 12:41am

re alignment
im yet to be convinced his sex change was his choice. why would the government allow such a privilege. seems more like the CIA showing that if you want to standup and be a man they will take your manhood. just a conspiracy of mine with no evidence but do you really think the government would make his imprisonment easier for him/her given the vitriol against him.
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Anonymous Coward, 24 May 2016 @ 12:54am

Re:
She would be better off fleeing to a country that would not give her up like snowden did.

You are a bit late in making that suggestion. Also, as Ed Snowden discovered, you want to get to the country you want to live in before blowing that whistle.
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Uriel-238 (profile), 24 May 2016 @ 1:59am

"Get to the country you want to live in [first]"
That's actually what Snowden did. He was in Hong Kong (which had a good reputation for providing asylum) when the revelations went public. He didn't anticipate that the US could successfully lean on Hong Kong to deny him.

He ended up in Russia because he was in transition there when his visas expired. Putin has been generous, probably on the grounds that he's an enemy of my enemy, also that he embarrasses the US.

Heaven forbid the US and Russia establish benevolent relations before Snowden gets pardoned.
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Wendy Cockcroft, 24 May 2016 @ 5:56am

Re: Re: Re: Pardon her
^This. It's amazing what you can achieve with a bit of faith. Talk about the other parties on your social media, in forums... everywhere you can. Argue their policy merits and demerits but above all get other people talking about them if you can. It doesn't matter if you think they're wrong, it matters that they're there.

Please can you give the Pirate Party a shout-out while you're at it?
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Wendy Cockcroft, 24 May 2016 @ 5:57am

Re: Re: Manning continues to serve as an example...
Attitudes like that ensure that sooner or later, it will be.
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Wendy Cockcroft, 24 May 2016 @ 5:59am

Re: re alignment
Wouldn't the demise of Captain Winkie have ended up on the list of complaints in the appeal if that were the case, Questioner?
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Anonymous Coward, 24 May 2016 @ 8:31am

Maybe she can share a cell with Her Majesty
You have to admit it would be pretty ironic if Hillary got elected and left Manning to rot.
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Anonymous Coward, 24 May 2016 @ 9:24am

When you join the military, you give up some of your Constitutional rights.
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That One Guy (profile), 24 May 2016 @ 12:41pm

Re: "Get to the country you want to live in [first]"
He ended up in Russia because he was in transition there when his visas expired. Putin has been generous, probably on the grounds that he's an enemy of my enemy, also that he embarrasses the US.

I'm guessing it's the latter more than the former, Putin probably enjoys being able to frustrate and annoy the USG simply by refusing to extradite one person, and enjoys showing that he has equal standing with the USG in that they can't make him do so.
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Anonymous Coward, 24 May 2016 @ 1:38pm

Re: Re: Re: Re: Pardon her
Whatever happened to the US PP? Couple years ago, I was gung-ho and looked for the IL PP. Their entire presence was a poorly maintained FB page. After seeing that, I went with my second choice: waiting patiently for the inevitable embrace of death*.

* - And yes, there are many people who could have (and would have) done something to pitch in and get things going again. I'm not that type of person. At best, I'm slightly less useful at motivating others than is a dead sea-cumber embedded in a glob of cold-pour asphalt patch. The previous sentence should existentially prove its own validity.
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Anonymous Coward, 24 May 2016 @ 2:17pm

Re:
Strangely enough, the same thing is true for every day you choose to remain a civilian.
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Anonymous Coward, 25 May 2016 @ 6:35pm

In a few years, they'll hand down 35-year sentences for sharing 'copyrighted content'.
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