Well, that was interesting.

I’m not sure what was happening here earlier, but not being able to post gave me time to try out the new swing and whips er, lawn mower.

What’s up with you all?

Thursday was the first day of the sentencing phase of PFC Manning’s court-martial.  He was, you will all recall, acquitted of the Art. 104 specification for “Aiding the Enemy” which could possibly have resulted in his imprisonment for life.  On Thursday, the Government witness stated under direct examination that the Taliban had executed a village elder in one village and claimed that they had found the man’s name and information in the Wikileaks document cache.  On cross-examination, it was revealed that the witness, having searched that cache for that victim’s name, could not find the name anywhere.  The Judge sustained the Defense’s objection to that part of the testimony and struck it from the record and stated that she would not consider it in her sentencing deliberations.  On Friday, two State Department personnel were on the witness stand, and one testified that she had overseen the very expensive and time consuming process to move DoS secured traffic off of SIPRNet (the system that Manning compromised) and onto JWICS, a more secure system for TOP SECRET traffic.  She testified as to the disruption in service this caused the State Department, as well as the financial cost, and the ongoing degredation of service, due to the various restrictions on that system and those who access it.  Another State Department employee spoke about how several human rights activists in different places have stopped talking to them because their security can no longer be guaranteed, and how several people had to be extracted from their home countries and relocated to the US or to other locations for their safety.  The court went into a classified session with this witness still on the stand.

Additionally, Manning’s legal team, consisting of David Coombs and two JA officers, filed several motions in relation to the Judge’s verdict, seeking to merge various specifications (and thereby limit Manning’s exposure to confinement) under the theory that convictions on multiple charges and specifications for singular or ongoing acts (referred to as multiplicity) is unfair and probably unconstitutional.  This has been an ongoing issue in the military justice system for some time.  For example, Manning was convicted of improperly accessing a secured computer on a certain date under one charge/spec.  He was also convicted of stealing government property (data) on that date, under another charge/spec.  He was convicted under another charge/spec for unlawfully placing classified data on an information system not rated or secured for that purpose (his own personal laptop) on that same date.  And he was convicted of espionage as a charge/spec for transmitting that data to a foreign national not cleared to receive it, again on the same date.  And finally, he was convicted of one charge/spec of conduct that was prejudicial go good order and discipline on that same date for committing acts that were violations of US law.  It is Manning’s team’s contention that all of these acts were subordinate parts of one predicate crime, and that Manning should only be liable for the most serious crime, espionage, which would reduce his punitive exposure to 10 years from 30 years for this particular incident on that particular day.  If they are successful, and there’s reason to believe they will be at least partly successful, they could reduce Manning’s maximum exposure from 136 years to something in the neighborhood of 100 years.  It is likely however, that the court will not merge the Article 134 charges/specs with the other charges because Article 134 covers that conduct that is prejudicial to good order and discipline or that conduct that brings discredit upon the service.  That is a uniquely military crime and will likely be treated as such, in accordance with recent developments in the military justice system.  As always, mistakes or bad information from me is solely my responsibility and not the responsibility of people who have very graciously given of their time and expertise to me.

The Army has set up a FOIA reading room, where the public may peruse filings and rulings and other such here.  Some organization has been creating transcripts by court reporters with the court’s permission and posting them on the web twice daily, but I can’t find the link for that.

Manning Verdict Today–Acquitted of Aiding the Enemy, Guilty of all other charges.

The Judge, COL Denise Lind announced to the parties that she would have the verdict today.  It should be coming in around 2:00 PM Eastern time, but possibly sooner.  Since PFC Manning has already plead guilty to several charges and specifications as lesser included offenses to the original charges and specifications, there will be a sentencing phase, which will occur immediately after the verdict is passed and the findings phase is concluded.

The sentencing phase will be essentially, another trial.  The Trial Counsel will present a case for a certain maximal punishment, which will include the possibility of life without parole if the Aiding the Enemy spec is included.  The Defense will present a case to minimize that potential punishment as much as possible.  This will likely include a feature not found in civilian trials, the Unsworn Statement, in which the Accused will be allowed to address the Court, with assistance of Counsel and make a statement for the record that, because it is unsworn, is not subject to cross-examination or to penalty of perjury.  The Judge will then retire to determine the sentence.  Just for the charges to which he has plead guilty, PFC Manning faces a maximum of twenty years in confinement, Dishonorable Discharge, reduction to E-1, and total forfeiture of all pay and allowances.  He will get sentence credit for each day he has spent in pre-trial confinement, as well as an additional 110 days sentencing credit for the unnecessarily harsh conditions in which he was kept for part of his time in the Quantico Brig.

In the event that his sentence exceeds one year or includes a punitive discharge, review by the Army Court of Criminal Appeals of the findings and the sentence is automatic under Article 66, UCMJ.  This is another right that Civilians do not have, in addition to the rights of the Accused to petition the Convening Authority for clemency, under which the CA can also review findings and sentence.  In both cases, the ACCA or the CA may, at their sole unreviewable discretion, set aside the findings or the sentence in whole or in part.  In neither case can the sentence be increased beyond what the trial Judge issues.  Additionally, the Army Clemency Review Board may reduce the sentence as they see fit, and this is also a nonreviewable decision.  Assuming that PFC Manning appeals to the Court of Appeal for the Armed Forces, that court may also review the record and make findings with respect to findings and sentence of the Court-Martial, and may reduce or obviate the sentence as they see fit.  If CAAF reviews, then that opens the door to SCOTUS review.  If CAAF does not review the case, then SCOTUS does not have appellate jurisdiction, and SCOTUS has never reviewed the law (Art. 67-a, UCMJ) that limits their jurisdiction here.  Every single challenge to the constitutionality of Art. 67-a has been refused hearing by SCOTUS.  The information contained in this paragraph however, refers to events which are two to five years away from today.

Also too, Open Thread


UPDATE:  MANNING NOT GUILTY OF AIDING THE ENEMY.  Tweeted by @kgosztola, @NathanLFuller

NBCNews.com reports that the Judge found him “guilty of two other charges.”  update–Guilty of all other charges including theft of government property, and espionage.  That last one is included in military law under a UCMJ provision that makes violating federal criminal statues a criminal act under the UCMJ.  It could carry a possible life sentence.  The Sentencing phase will begin immediately–like, after a short recess.  This is not like civilian criminal court where there’s a break of several days to weeks.

UPDATE: Sentencing phase of the Court-Martial will begin tomorrow morning at 0930hrs, Eastern.  PFC Manning faces a maximum sentence of 136 years in confinement, reduction to E-1, forfeiture of all pay and allowances, and dishonorable discharge from the Army.

Bert and Ernie, courtesy of The Onion


The Government is has rested their principal case  in US v Manning.



I don’t know if the Defense will start to present their case tomorrow, or if they’ll wait until Monday or if there will be a session on Friday.

MAJ Nidal Hassan’s capital Court-Martial is set to start soon.  He will be defending himself.  Due to a quirk in the UCMJ, he (MAJ Hassan) cannot plead ‘guilty’ to a capital charge, but can only be found either ‘guilty’ or ‘not guilty’ of the capital charge.  The available punishments for a capital conviction under the UCMJ are Life Without Parole or Death by lethal injection.  The Government has already stated their intent to prosecute him and seek the death penalty if they get a conviction.

Also too, an open thread


Oh, and one more thing–for the current crop of racists and other winger fuckwits trying over and over again to post things in dead threads–the automod  kicks in after the thread has been inactive for a while, and it does it to everybody as an anti-spam feature.  But if I see you trying to post in the Creepy ass Cracker thread that “Trayvon was the REAL racist!” I’m not going to un-mod you.  And while I haven’t talked to any of the others, I don’t expect they will feel any differently than me.  If you don’t have the balls to post in active threads, then you probably shouldn’t be posting here at all.

Mid-day ephemera

Unofficial Manning case trail transcripts are available here.  Military courts-martial do not release daily transcripts.  They only release documents on FOIA requests.  The fine people at the linked site are paying a qualified court reporter to sit in the gallery and take transcription, and the Military Judge is allowing this.  If you value this service, you might want to toss them some coin.

Yahoo’s coverage is here.

The Electronic Entertainment Expo (E3) is going on in Las Vegas Los Angeles.

Girl who sparked debate gets lung transplant

After scouts lift gay ban, Baptist group calls for firings

French Teacher screens the movie “Saw” for his 6th grade class, gets suspended. 


Oh, yeah, there’s this, too:


on impure vessels and public discourse

I’m up with insomnia.  Happens every so often.

So here’s a thought-

Most of the recent revelations’ good AND bad regarding our government’s covert activities’ legal or not, good or bad, have come to us via “impure vessels.”

Bradley Manning isn’t anyone’s idea of a good Soldier.  This other guy has some issues too,  or so it seems. *  The conduits through which these men choose to act are themselves less than ideal.  Julian Assange is a con man who strung his most lucrative source along for months and then left him high and dry, not even willing to make good on his half-assed pledge to donate money for PART of Manning’s defense fund.  Greenwald is a prickly sanctimonious blow-hard frequently more dedicated to self-promotion than the accuracy of his work.

In other words, they are imperfect vessels.  And while it is right to look at their specific claims with a healthy dose of skepticism, let’s not lose sight of the fact that these men have brought up subjects that we should be discussing.  This shit is important, as my dad would say.

A lot of important things we take for granted came about because of imperfect vessels.  I’m pretty sure no one would give up the right to be informed of the charges against them, and their rights at arrest, even though Miranda was a violent psychopath.  I doubt Clarence Gideon would make many short lists for dinner invitations, but I’m damn glad for the protections that came from his case.

So let’s have those discussions, and not in Mitt Romney’s quiet rooms out in the open, loudly and honestly, the way Americans are supposed to do.  Manning, by his own admission, should be in jail.  So should this other guy, probably.  But like Gideon and Miranda, the rest of us do owe them a debt of sorts, and we would do well to remember that.


* I’m on my tablet here at 5:00 AM, so I’m not going to hunt down details.  They’re available in previous threads.  Go knock yourselves out.