- By Kori SchakeKori Schake is a fellow at the Hoover Institution.
I do not often disagree with my good friends, the legal sharpshooters over at Lawfare. Ben Wittes, a senior fellow in governance studies at Brookings, Susan Hennessy, also a fellow there, and the other contributors have going the most important conversation anywhere on issues of national security and law. Yet I believe they are overlooking an important national security ramification of their argument in favor of clemency for convicted leaker Chelsea Manning. In particular, they are prejudicing the views of civilian approaches to justice over those of the military, in which Manning was a voluntary participant and by the legal standards of which she has already been treated leniently.
Extending legal reasoning appropriate to our civilian society into the military in ways that don’t align with the purposes of military activity corrodes the military’s ability to serve its function — a problem Wittes and Cody Poplin wrote about persuasively in their chapter on legal issues in Warriors and Citizens, the book I edited with Gen. James Mattis. The problem, as Wittes and Poplin conclude, is particularly acute on issues of social justice, because civilians have experience with these issues that forty years into an all-volunteer force few have with other elements of military life, and therefore tend to make false equivalences. I agree with Wittes on this, but not on Manning.
The argument Wittes and Hennessy advance for commutation rests on four elements: 1) Manning accepted culpability for her actions; 2) the Manning decision was really about another leaker — Edward Snowden; 3) Manning’s case presents mitigating mental health circumstances; and 4) many outside the military view the sentence as excessive. Let me take each of them in turn.
That legal proceedings allowed for public evaluation of Manning’s crimes, whereas Snowden remains unrepentant and beyond the reach of U.S. law are, as Wittes and Hennessy argue, important distinctions between the cases. They should negatively weight judgment against Snowden, but not attenuate judgment about Manning. Manning didn’t have a choice of whether to participate in justice proceedings. She was found out, arrested, tried, and convicted. She was not a voluntary participant in the undertaking, and therefore ought not to accrue credit for adopting what was the best prospect for minimizing the potential penalty. Manning may deserve greater leniency than Snowden, but that is a relative rather than an absolute merit.
Which brings us to the second argument: The decision is really about showcasing this defendant as different from and more deserving than Snowden. President Barack Obama is trying to build a firewall of distinction between a traitor who continues to advocate his treason as righteousness and a junior soldier deeply troubled by what she considered barbarous targeting of civilians. But the commonalities between the two are likewise relevant: Both released thousands and thousands of classified documents without consideration of the damage they would do to innocent people or their country’s security. Both considered their judgment and personal code of conduct superior to that of their organization and the law. Both violated vows they freely undertook and betrayed people who trusted them. Both put lives in danger by their actions and damaged the country’s ability to protect and advance its interests.
Manning’s mental state is clearly troubled. She is in psychological anguish and has attempted suicide more than once. But there is an inherent bias of excusability in the argument for lenience. To argue for clemency on those grounds is to argue either that her crime is more excusable or her circumstances more deserving of leniency. To take an extreme counterexample, it is unlikely Obama would commute the sentence of someone who opened fire on a school or a church, although in several recent cases the mental state of the shooters was also troubled. Those are, rightly, unsympathetic defendants. But to sustain the argument for Manning is to argue that her anguish is uniquely deserving of sympathy.
Moreover, Obama has aggressively prosecuted leak cases — so vociferously that people holding security clearances were prohibited from even accessing the WikiLeaks site, although the posted documents were declassified in practice once posted there. It goes beyond routine political hypocrisy to suggest that Manning deserves clemency for having released the documents while those who see legal and operational purpose to making use of them continue to be penalized. The “president’s favorite general,” former Vice Chairman of the Joint Chiefs of Staff James Cartwright, who surprisingly got snared in the investigation of the Stuxnet leak, got an outright pardon, so perhaps leniency for military was the deciding rule.
Which segues to the third argument: Many civilian legal experts consider Manning’s sentence of 35 years too harsh. This importation of civilian standards into a military setting is exactly the kind of intrusion Wittes and Poplin worried about as they reviewed the surveys of public attitudes about the military.
While privacy hawks do exist in the ecosystem of the military, as do a considerable number of passionate advocates for justice — especially throughout the Judge Advocate General Corps — I’d be very surprised if the views that Manning is different in type from Snowden or that her sentence is excessive hold much sway in the military community. And it should matter that Obama’s intrusion into military justice proceedings will have impact on the norms of behavior that hold fighting units together and the views of the people most affected by Manning’s actions. We would rarely hold that the public’s view of civilian law is irrelevant — peoples’ assemblies make and modify law as attitudes change. In exceptional cases where localities infringe on Constitutionally protected rights, the public can be overruled, but Manning’s case does not exhibit those higher principles that might justify imposing on the military a verdict or a sentence at variance with its legal practices.
There is a reason the founding fathers, who knew something about exigencies that require a military to excel at war fighting, created for it a justice system separate from its civilian counterpart, and likewise why the Supreme Court has maintained the integrity of that system across numerous challenges. We civilians ought perhaps to take a humbler approach from such a distance as we inhabit and give our military brethren and sisters the benefit of the doubt that they proceed in ways appropriate to the unique demands of their dangerous and important work.
The counterexample, of course, is that President Abraham Lincoln pardoned deserters, even in the middle of the Civil War. That great man and great president was so lenient that his secretary of war fulminated often about the derogatory effect on military morale. But Lincoln had a riven nation to stitch back together; the political was always paramount for Lincoln, and well it should have been for so monumental an undertaking. I don’t think the same can be said for Obama’s decision to commute Manning’s sentence. Obama has commuted sentences mostly to relieve those who received what he considered unfair penalties. That sends a terrible signal to the military about their civilian masters’ understanding of the obligations it undertakes for our country.
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