A Quick Primer on Military Justice and The Manning Verdict

After hearing evidence in a contested bench trial, Army Colonel Denise Lind, a military trial judge, found Pfc. Bradley Manning guilty of most of the charges and specifications today in a military court room at Fort Meade, Maryland, in connection with his release of documents to Wikileaks.  Manning faces a maximum possible sentence of over 128 years for those charges alone. The Court acquitted Manning of aiding the enemy, a crime under Article 104 of the Uniform Code of Military Justice.  Aiding the enemy carries a punishment of up to life without parole. Prior to the contested case on the merits, Manning entered a guilty plea to several specifications of violating lawful general orders.  He faces up to 20 years, on top of the 128 years, for these charges. The Court accepted Manning’s pleas of guilty, but the government chose to go forward with the remaining charges.  In military court, normally when a plea bargain is struck between the defense and government, the defendant pleads guilty to some of the charges, in exchange for the government not going forward on the remaining charges.  However, the practice of pleading guilty to some charges and the government going forward on the remaining charges is also common in military courts-martial.  Those cases are called “mixed-plea” cases. Now that the Court has rendered its verdict with respect to findings, the court-martial will move on to the sentencing phase.  The sentencing phase in courts-martial usually takes place immediately after a guilty verdict, often commencing the same day as the verdict.  During the sentencing phase, the government will put on evidence in aggravation of the crimes the accused was convicted of, and the defense will put on mitigation evidence.  The rules of evidence apply in sentencing cases in the military (as compared to civilian criminal courts), unless the military judge “relaxes” the rules of evidence, which is common. During the sentencing phase, the accused has the opportunity to present a statement to the court, either under oath or not under oath.  If the accused chooses to make a statement under oath, he may be cross-examined by the prosecutor and questioned by the military judge.  If he chooses to make an unsworn statement (i.e. not under oath) he may not be cross-examined by the prosecutor or questioned by the military judge.  The government does have the right to rebut misstatements of fact in an accused’s unsworn statement. Here, it is quite likely that the defense will argue that the law requires the Court to merge several of the charges for purposes of sentencing exposure, since, they will argue, the conduct is essentially the same. After each side presents its sentencing case, the Court will close for deliberation. The Court will then be called back to order, at which time the military judge will announce her sentence.  Sentences in the military are general in nature, which means the Court will announce a consolidated sentence. If the sentence of the Court includes either a period of incarceration over one year, or a dishonorable or bad conduct discharge, Manning’s case is automatically appealed to the service appellate court---here, the Army Court of Criminal Appeals.  The case may then go to the highest military court, the Court of Appeals for the Armed Forces.  Thereafter, and because of a relatively recent change in the law, the accused may petition a writ of certiorari to the United States Supreme Court.

Cully Stimson is a Senior Legal Fellow at the Heritage Foundation, and Manager of its National Security Law program.