Why supporters believe a fair trial is impossible, law requires charges be dropped

By Nathan Fuller. March 19, 2012.

Gen. Martin Dempsey broke the law in declaring PFC Manning guilty

Another top ranking member of PFC Bradley Manning’s Chain of Command has declared him guilty well before his court martial has even begun, in another judicial step backward for the courageous whistle-blower who shouldn’t be on trial in the first place.

General Martin Dempsey, chairman of the Joint Chiefs of Staff, spoke to the press last weekend in Hawaii. Asked for his thoughts on Bradley Manning, Dempsey said, “We’re a nation of laws. He did violate the law.”

Note that General Dempsey’s comments echo those of President Obama nearly verbatim. Asked nearly a year ago to discuss PFC Manning’s imprisonment, President Obama said, “We’re a nation of laws. We don’t individually make our own decisions about how the laws operate… He broke the law.”

The similarity in phrasing is so uncanny as to appear deliberate.

Both statements, from a 38-year military veteran and a professed scholar of the Constitution, respectively, blatantly disregard the core precept of American justice: that the accused is innocent until proven guilty. PFC Manning has not even begun his court martial, let alone received a verdict.

Furthermore, both statements directly breach the Uniform Code of Military Justice (UCMJ) rules prohibiting unlawful command influence. The UCMJ’s Article 37, “Unlawfully Influencing Action of Court,” states:

“No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”

This article has been tried and tested in court. In 1956’s United States v. Hawthorne, the court ruled,

“This Court has consistently held that any circumstance which gives even the appearance of improperly influencing the court-martial proceedings against the accused must be condemned.”

In 1995’s United States v. Gleason, a battalion commander “made clear that he believed the accused was guilty,” and the Court of Appeals for the Armed Forces determined unlawful command influence warranted overturning the conviction and the sentence.

As chairman of the Joint Chiefs of Staff, Gen. Dempsey is the top-ranking military official in the United States. As president, Obama is commander-in-chief. If the United States truly is, as both are eager to argue, a “nation of laws,” will these officials be held to account for breaching the UCMJ?

PFC Manning’s attorney, David Coombs, requested President Obama to testify as a witness at Manning’s Article 32 pretrial hearing in December. The government denied this request, claiming that the president was too important to appear in court. When Coombs filed a rebuttal, requesting again that President Obama (and Hillary Clinton, among others) testify, he wrote:

“The relevancy of these witnesses should be obvious. Each of these witnesses has provided statements that contradict those given by the OCA [Original Classification Authority] witnesses regarding the alleged damage caused by the unauthorized disclosures. Additionally, each of these witnesses is relevant in order to inquire into the issues of unlawful command influence and unlawful pretrial punishment in violation of Articles 13 and 37 of the UCMJ.”

That request was also denied, and Coombs was forced to proceed through the pretrial hearing with only a third of the witnesses he requested and therefore a far more limited argument than the one he intended. Coombs is expected to request President Obama’s testimony at the court martial – and now, perhaps, Gen. Dempsey’s as well – but if the pretrial hearing is any indication, the fact that both Obama and Dempsey breached the UCMJ won’t compel their presence or sworn depositions.

At the heart of the matter is a greater truth about violation of the law. The material Bradley Manning is accused of releasing to WikiLeaks exposes extensive illegality, from crimes of war, to covering up torture, to spying on UN officials at Sec. Clinton’s request.  But those crimes are not being investigated. No matter how loudly our top officials declare the United States to be a “nation of laws,” the powerful enjoy immunity while a whistle-blowing messenger faces life in jail.

This material exposed clear wrongdoing.  Chat logs reveal that PFC Manning acted on his conscience and believed these documents belonged in the public sphere. He should be given a medal, not a trial. But as Manning’s case proceeds to court martial anyway, the least he should expect is to be given a fair trial. How can he expect a judge or jury to be impartial, when doing so might require contradicting their superior officers? And when will those superior officers be held to account for unlawfully influencing the case?

The fact is that it simply is not possible at this point for PFC Manning to receive a fair trial.  Forty years ago, a judge dropped similar charges against Pentagon Papers whistle-blower Daniel Ellsberg due to “improper government conduct” by the Nixon administration. The Obama administration’s numerous violations of PFC Manning’s rights have irrevocably tainted a show trial that never should have begun in the first place.

Government officials forfeited all further claims to the judicial process the moment they deployed extrajudicial measures against Bradley Manning. There is no way to balance the scales of justice after they have been damaged.

Even at this late hour, administration officials have a duty to prevent further injustice.  Their cowardice is the only force that compels them onward in this public debasement of the very liberties that are supposed to set us apart from the tyrants of history.

As Lt. Dan Choi said at a rally outside Fort Meade in December, “our reputation and what our country stands for” is on trial.  We can see already how the United States government is becoming increasingly isolated in the eyes of the international community.  The United Nations, government officials in the U.K, Russia, and across the European Parliament have called out the Obama administration for transgressing internationally-recognized boundaries of acceptable behavior.  These kinds of high-profile rights abuses are widening a chasm of distrust between the American people and their government. According to a Gallup poll taken last year, a majority of Americans now feel that the federal government “poses an immediate threat to the rights and freedoms of ordinary citizens.” Military officials like General Dempsey openly mock the rule of law when they prejudice a case with unlawful public declarations of guilt.

Bradley Manning may be in shackles, but our government is on trial.  The prosecution is representing the defendant, while the real jury occupies the space behind the bar.