As the trial of Pfc. Bradley Manning begins its sentencing phase Wednesday, the prosecution will attempt to show that the documents he released gravely damaged national security.
At the same time, the defense will make the case that the perhaps the government was embarrassed by Private Manning’s disclosures, but they did not cause the catastrophic harm to national security that the Obama administration initially claimed.
To bolster this point, they will no doubt point to an August 2010 Pentagon review that concluded that the dire predictions made by the Pentagon about the damage the leaks would cause had not come to fruition.
The Defense Department report instead found that the leaks had not compromised US intelligence sources or practices, although it did warn that the disclosures could at some point in the future still cause damage to US national security interests.
“They are going to try to show that nothing he did ultimately harmed the country,” says Richard Rosen, former commandant of the US Army’s Judge Advocate General’s School and currently the director of the Center for Military Law and Policy at Texas Tech University School of Law in Lubbock.
The bulk of this sort of evidence could not be introduced before the judge rendered its verdict, because it could be deemed prejudicial or irrelevant, but in the sentencing phase of the proceedings, “The rules of evidence are relaxed,” Mr. Rosen adds.
For example, Manning may make a statement on his own behalf. This could be sworn testimony – in this case, the prosecution could cross-examine him.
He could also choose to make an unsworn statement, which would not be eligible for cross-examination.
The key for Manning will be providing mitigating evidence – “factors that may sway the judge to grant him a lesser sentence,” Rosen says. “This may be family problems or that people persecuted him because of his sexual preferences.”
The sentencing phase will be extensive and may last for weeks. Although Manning was acquitted of “aiding the enemy,” which would have carried with it a life sentence without the possibility of parole, he has been found guilty of crimes that generally impose decade-long sentences each, which could quickly add up.
“It’s going to accumulate quite a few years,” Rosen says. “We’re probably talking nearly 100 years – we’re talking a lot of years.”
“We’re not celebrating,” defense attorney David Coombs said. “Ultimately, his sentence is all that really matters.”
Once Col. Denise Lind, the presiding judge, renders her verdict, Manning’s case will automatically go to what is known as the “convening authority,” a general who, if he so desired, could overturn the verdict.
The powers of the convening authority have been called into question over recent months, when they have twice thrown out sexual assault convictions rendered by military juries.
Though unlikely to happen, the general who is serving as the “convening authority” in the Manning trial – as with the sexual assault cases that caused so much controversy – could dismiss the conviction, known as “setting aside” the verdict.
What the general cannot do is provide a harsher sentence than Colonel Lind has already given to Manning. “He can give further clemency if he wants, he can lessen the sentence, or he can set aside the findings,” Rosen explains.
If the convening authority declines to change the sentence, Manning’s defense team can also seek clemency through the Court of Appeals for the Armed Forces.
Beyond that, they could take the Manning case all the way to the US Supreme Court, likely by arguing that the US government violated Manning’s constitutional rights.
That will be a tough case to make. “I can’t think of a time when the Supreme Court has overruled a court of appeals for the Armed Forces,” Rosen says. “They don’t like to second-guess the judgments of the military courts.”
In the meantime, the defense will seek to ensure that Manning gets credit for the jail time he has already served – three years – and perhaps more by arguing that he was mistreated in pretrial confinement by being put in solitary confinement and being stripped naked.
For this, “He’ll try to seek additional credit – in other words, not a one-to-one reduction in jail time, but, say 10 to 1 – in other words, 10 days for every day he was mistreated,” Rosen says.
“It’s going to be long and involved,” he adds. “It doesn’t end here.”