Chelsea Manning Appeals 35-Year Sentence For Leaking Files

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 unfairand unprecedented. No whistleblower in American history has beensentenced this harshly. Throughout trial the prosecutionportrayed PFC Manning as a traitor and accused her of placingAmerican lives in danger, but nothing could be further from thetruth.

PFC Manning disclosed the materials because under thecircumstances she thought it was the right thing to do. Shebelieved the public had a right to know about the toll of thewars in Iraq and Afghanistan, the loss of life, and the extentto which the government sought to hide embarrassing informationof its wrongdoing. At sentencing PFC Manning took responsibilityfor the disclosures and admitted she should have consideredother lawful ways of expressing these concerns. But she was notdisloyal 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, thegovernment violated Article 13, Uniform Code of Military Justice(UCMJ), by subjecting PFC Manning to unlawful pretrialconfinement for nearly a year. The military judge correctlyfound Article 13 error, but did not fully credit PFC Manning forthe deplorable and inhumane conditions, which were tantamount tosolitary confinement. For this alone the charges andspecifications should be reversed or her punishmentsubstantially reduced.

Second, as set forth in Assignments of Error II, III, andIV, the government overcharged the case to expose PFC Manning toexcessive punishment. This appeal challenges the convictionsrelated to 18 U.S.C. 641, 1030(a)(1) and 793(e). Rather thancharging PFC Manning for mishandling classified information, acharge she admitted to, the government charged her with stealingdatabases (Section 641), using unauthorized software on aclassified computer system (Section 1030(a)(1)), and disclosingclassified information with knowledge it might harm the nationaldefense (Section 793(e)). As addressed below, the military judgemisapprehended and misapplied the law with respect to thesestatutes, which unfairly inflated the penalty landscape.

Third, in Assignment of Error V, the defense challenges themilitary judge's consideration of aggravation evidence that wasnot directly related to or resulting from the offenses. Andfinally, in Assignment of Error VI, the defense urges this Courtto exercise its broad powers to reconsider the appropriatenessof PFC Manning's sentence to confinement. These last twoAssignments 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 governmentand military officials at all levels regularly disclose what maybroadly be considered "information relating to the nationaldefense." They do so in pursuit of various agendas. Somedisclose information to further the government's preferredmessages, some to pursue private agendas, and some to inform thepublic of information critical to democratic accountability.Until Private First Class ("PFC") Manning was convicted before ageneral court-martial of six counts of violating the EspionageAct, 18 U.S.C. 793(e), however, no person in the history ofthis nation had been sentenced to decades in prison for thecrime of disclosing truthful information to the public andpress.

The conviction and sentence of PFC Manning under theEspionage Act must be overturned for two reasons. First, theEspionage Act is unconstitutionally vague, because it providesthe government a tool that the First Amendment forbids: acriminal statute that allows the government to subject speakersand messages it dislikes to discriminatory prosecution. Second,even if the Act were not unconstitutional in all itsapplications, the military judge's application of the Act to PFCManning violated the First Amendment because the military judgedid not permit PFC Manning to assert any defense that wouldallow the court to evaluate the value to public discourse of anyof the information she disclosed. The military judge thereforefailed to weigh the public interest in the disclosures againstthe government interest in preventing them, as required by theFirst 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.

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