Why Obama’s commutation of Chelsea Manning’s sentence is a setback for transgender troops

While the report that Chelsea Manning will be free this coming May instead of facing a parole board in three more years may be celebrated as a triumph for transgender persons, I would suggest it would have been far better to have let the system work as it does for everyone else.  If a parole board had the chance to resolve Manning’s case in just a few years, which would have been the case had President Obama not interfered, my bet is that she would have been set free.

However, appearing to exempt her from the usual process based largely on her transgender status – as opposed to the facts of her criminality and the merits of her case – is a setback not just for transgender troops, but also for the military writ large.

Why?  In the military, allowing the disciplinary system to work the same for everyone is vitally important – and this is one reason Congress created the Uniform Code of Military Justice.  Adherence to impartiality in fact and appearance matters greatly to the morale and discipline of a large and diverse force which expects all of its members to be equally ready to put their put their lives on the line.

Instead, we now have a high-profile case where it appears that the President yielded to partisan politics and catered to a favored constituency.  To the deeply meritocratic military culture, such preferentialism is wrong and offensive on many levels.  My sense is that transgender people in the armed forces just want to be treated like everyone else, to include having those among them who commit serious crimes punished the same as others would be.  If that’s right, Manning’s commutation will not help them.  (And it wouldn’t surprise me if this concern is what is behind Secretary of Defense Ash Carter’s reported opposition to the commutation.)

As you may remember, Manning was convicted by court-martial in 2013 of leaking what the Washington Post described as being the “largest cache of classified documents in U.S. history.”  Her conviction included multiple “violations of the Espionage Act, for copying and disseminating classified military field reports, State Department cables, and assessments of detainees held at Guantanamo Bay, Cuba.”

Significantly, the original 35-year sentence was not imposed by a panel of military officers (as is possible in military justice cases), but rather – at Manning’s request – by an experienced military judge (and reportedly, a registered Democrat) Col Denise Lind.

Perhaps most importantly, Judge Lind sentenced Manning to only a fraction of the potential 90 years of imprisonment she faced.  Yet some still question what they think is the unprecedented severity of the sentence.  Consider this: even if the sentence was unprecedented, doesn’t it fit the scope of the crime – the compromise of the “largest cache of classified documents in U.S. history” – which is itself unprecedented?

At the time, the Post quoted Steven Bucci, Director of the Douglas and Sarah Allison Center for Foreign Policy Studies at the Heritage Foundation, about the unique importance of the case to the military’s culture.  He said, “The message won’t be lost for everyone in the military….When you sign a security clearance and swear oaths, you actually have to abide by that.  It is not optional.”

However, that was before the President came under what CNN describes as “intense pressure from LGBT groups that have been stalwart supporters throughout his political career.”  Is the mere fact that Manning is transgender a reason to relieve her from the consequences of her criminal conduct?  Some seem to think so.  It’s been argued that Manning’s commutation is justified because, it was claimed, her “case continues to generate divisive headlines which highlight the current inability of the US military to facilitate compassionate and humane in-service transition for transgender people.”

Allow me to say, that I would hope that the military justice system – or any criminal justice system – would not bend to headlines.  Of course, it’s difficult for any confinement facility to handle a convict undergoing transgender transition.  However, there are many kinds of prisoners who present challenges to corrections officials, but such issues are not a reason to forget about their crimes and release them. And, again, in Manning’s case we’re talking about something no soldier in the military had ever done, that is, the compromise of the “largest cache of classified documents in U.S. history.”

Regardless, there is zero evidence that the confidence of the American people in the military has eroded one scintilla because of Manning: a June 2016 Gallup poll once again showed that the military is the institution in American society in which it has the most confidence.

In evaluating the Manning case, I believe that her supporters, to include the President, might be approaching it with a civilian mindset dangerously inappropriate to the military setting, and that is one reason they simply do not – and possibly cannot – understand how damaging this action is to morale and discipline in the armed forces.

Manning committed her multiple offenses in a combat zone where adherence to discipline is literally a life-or-death matter, not just for the unit, but for the military mission.  For this reason, the Supreme Court has pointed out that “no military organization can function without strict discipline and regulation that would be unacceptable in a civilian setting.”  It is uniquely essential for military success.  As I said elsewhere:

[M]ilitary justice served war fighters since virtually the beginning of organized conflict, because it plays a central role in establishing the discipline indispensable for martial success.  In the Anabasis, Xenophon observed that “if discipline is held to be of saving virtue, the want of it has been the ruin of many ere now.”  Maurice de Saxe, in his 1732 treatise on war, Mes Reveries, contends that the “Romans conquered all peoples by their discipline. In the measure that it became corrupted their success decreased.”  For his part, George Washington bluntly insisted that “discipline is the soul of an army.  It makes small numbers formidable; procures success to the weak, and esteem to all.”

The Supreme Court has long-recognized why the demands of discipline require a separate criminal justice system with its own imperatives.  I contend:

[T]he Supreme Court has repeatedly recognized that the military is “governed by a separate discipline from that of the civilian.”  Unlike what civilian society does, the Supreme Court acknowledges that “it is the primary business of [the armed forces] to fight or be ready to fight wars should the occasion arise.”  This very different function is why the Manual for Courts-Martial distinguishes military from civilian law because the former explicitly intends “to promote efficiency and effectiveness” in the armed forces in order “to strengthen the national security of the United States.”  Civilian criminal jurisprudence has no such responsibility.

Accordingly, as Chief Justice John Roberts observed in 2010, “military justice has been a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks.”  (Emphasis added.)  What President Obama has done is eviscerate the efficacy of “stern penalties” so necessary to maintain the “fighting fitness in the ranks.”

This unwise decision will also seal Obama’s negative legacy with the military.  Even before Manning’s commutation, a Military Times/Syracuse University Institute for Veterans and Military Families poll showed that only 36% of those in uniform had a favorable view of the job he did as commander-in-chief.  This comes on top of the overwhelming rejection of the President’s candidate by those still serving as well as by veterans.

What also doesn’t help is the White House’s inability to explain its muted reaction to the Chinese cyber theft of millions of records of military personnel, as compared to the Administration’s uproar about the Russian hack that exposed only ill-considered and embarrassing emails written by couple of politicos of the President’s party.  It cavalierly creates an appearance that the safety and security of military personnel and their families is somehow far less important than partisan political interests.  Like the handling of the Manning case, it’s illustrative of a lack of appreciation to the point obliviousness as to how actions can impact the military.

The Manning commutation is giving Obama’s critics a field day.  As just one example, Sen. John McCain quickly saw the duplicity and inconsistency of White House’s outrage over Russian hacks leaked by WikiLeaks, as compared to the leniency afforded Manning who also benefited WikiLeaks with her crimes.  (Upon hearing of Obama’s decision, Wikileaks, unsurprisingly, tweeted “victory.”)  McCain added:

It is a sad, yet perhaps fitting commentary on President Obama’s failed national security policies that he would commute the sentence of an individual that endangered the lives of American troops, diplomats, and intelligence sources by leaking hundreds of thousands of sensitive government documents to Wikileaks, a virulently anti-American organization that was a tool of Russia’s recent interference in our elections.

To be clear, I don’t oppose the use of the pardon power when the facts justify it.  Indeed, I’ve advocated a pardon for General Petraeus. (Among the many differences between the respective cases beyond Petreaus’ long and distinguished service as compared to the absence of the same in Manning’s record, none of the classified documents Petraeus was alleged to have mishandled were compromised, while all of the 750,000 pages that Manning leaked were.)

As I indicated, if the system had been allowed to work as it should, Manning might have been freed at her minimum release date by her regularly-scheduled parole board based on merit, not political injections.  Her admission of guilt, acceptance of responsibility, and conduct while a prisoner might have earned her freedom, fair and square.  We will, however, never know.

Instead, the message to the troops may well be that transgender soldiers get special, indulgent treatment they did not earn simply because of sympathetic politicos and misguided civilian thinking.  That is not a formula for transgender soldiers to get authentic respect, real trust, and true equal treatment from their comrades-in-arms.

Don’t forget to register for the 2017 Duke Law conference “Cyber, Security & Surveillance: Truth & Consequences” on Feb. 24th and 25th.  Agenda and registration information found here.

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