Army Pfc. Bradley Manning is escorted into a courthouse in Fort Meade, Md., Tuesday, May 21, 2013. (AP Photo/Patrick Semansky)
Today in Bradley Manning’s court-martial, witnesses from his Army Intelligence unit at FOB Hammer in Iraq were called to the stand to ask questions about what kind of authorization the defendant had to comb through the military field reports found on the SIPRNet; what kind of websites the enemy was known to frequent; what kind of non-disclosure agreements members of the unit were aware of signing, even if there was no actual information security (“infosec”) to speak of at the base. All of this speaks to whether Pfc. Manning knew that declassifying those thousands of documents would specifically help Al Qaeda and associates, which is what the prosecution needs to prove in order to make the “aiding the enemy” charge stick. I give them only a one-in-three chance of success with this bit of Orwellian overreach. (Full transcripts of the day’s proceeding here.)
Three days into the trial, let’s step back and ask: Would Manning be better off in a civilian court instead of the court-martial where he is being tried?
It’s true that Americans forfeit certain rights upon military enlistment and that the court-martial system is built for speedy outcomes, with fewer procedural safeguards for defendants. So it is understandable that many who are sympathetic to Private Manning assume he’d be a lot better off in a civilian court. But are civilian courts really milder or more fair-minded in national security cases?
Let’s ask Syed Fahad Hashmi, a Brooklyn College student who stored in his apartment socks and rainproof ponchos supposedly destined for an Al Qaeda training camp, set up by an FBI informant. Hashmi spent just shy of three years in pretrial solitary confinement at the Metropolitan Correction Center in Manhattan. Thank you, civilian justice system.
How about Tarek Mehanna, serving a seventeen-year sentence, handed down by a federal court in Boston, for posting Jihadist pep talks online. You don’t have to sympathize with Mehanna’s politico-religious worldview to be appalled by the penalty handed down by a civilian court in this case.
Or Javed Iqbal, convicted by a civilian court to six years in prison for including access to Hezbollah’s TV station in the cable boxes he installed in Staten Island and Brooklyn.
Yes, civilian courts are capable of meting out brutal sentences when the charges relate, however tenuously (socks and raincoats! a cable TV station!) to terrorism and national security.
On the other hand, military courts, even the tribunals at Guantánamo, sometimes issue mild sentences. For instance Salim Hamdan (Osama bin Laden’s chauffeur) was for time served plus five and a half months. Hamdan’s back in Yemen now.
This isn’t to defend the abomination that is Gitmo. (Close it already!) Nor is it to say that the military justice system is a suite at the Ritz-Carlton. In fact in many ways our military justice system a flaming mess—see how infinitely forgiving military justice is of rape, sexual assault and most of all, the killing of foreign civilians. I’ll be developing that theme in a later, less-bloggy essay.
But in the assumption that military justice is automatically more brutal than civilian justice, I can’t help but detect a note of unwarranted smugness. We are kidding ourselves if we think that Guantánamo is the only legal “black hole” in the US justice system, or if we think that our civilian and penal systems are gleaming citadels of enlightened, impartial justice. As I have argued elsewhere, many (but not all) of the features that make Guantánamo an abomination are easily found at home in our everyday “normal” justice system. Bradley Manning’s treatment would most likely not be any less harsh if this soldier were somehow magically being tried in the civilian court system.
Don’t miss Chase Madar’s post on Adrian Lamo.