05/20/16 – Vincent Ward – The Scott Horton Show

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Okay, introducing Vincent J. Ward.
He is one of the lawyers for Chelsea Manning.
Welcome to the show.
How are you doing, Vince?
Good.
Thanks for having me.
Very happy to have you here, and appreciate the work you're doing.
And please tell us about the appeal.
What's the basis of it?
Where are you at?
And all the things.
Sure.
So earlier this week, we filed our appeal on behalf of Chelsea in the Army Court of Criminal Appeals.
You know, it's a big document.
Some of it's classified, some of it's unclassified.
But the crux of it is that we are seeking reversal and dismissal based on the violation of Chelsea's constitutional rights.
And then also, for the court, if the court doesn't do that, to exercise its powers to reconsider and reduce what is probably the most unjust sentence in the history of the criminal justice, the military criminal justice system.
Okay, so first of all, you're trying to get some of the convictions actually reversed.
And then if not, at least sentence reduced.
Is that right?
Right.
You know, one thing that people may not recall about Chelsea's case, and I think it's an important point, is Chelsea did plead guilty to and take responsibility for the underlying mishandling offense, which we think goes to the totality of everything that she did.
And all the additional charges were nothing more than an attempt to stack the charges, to make it appear like Chelsea did something that was worse than what really happened.
And those particular offenses that are at issue include charges under the Espionage Act, the Computer Fraud and Abuse Act.
Then there's also a federal statute that deals with the theft of government property.
And I think it was quite unusual for the case to be charged like these prosecutors did it.
And, you know, I think that one thing to keep in mind is when the prosecutors brought the case, they included an offense under the Uniform Code of Military Justice designed to punish people for aiding the enemy.
And it theoretically carries with it, you know, a death sentence or life in prison.
I think the government knew that that was pretty unlikely that they'd get a conviction.
So the way they got around that was to stack these charges so that Chelsea was looking at an enormous amount of time.
And so we really go after the manner in which the case was prosecuted, because it's completely out of line and disproportional to what actually happened.
Oh, that's interesting.
And not just out of line, but procedurally, is that a problem?
The overcharging and then kind of withdrawing it at the last minute, replacing it with other smaller things, or that's all still...
Well, they charged it, you know, they charged it at the same time.
And so all of these charges were on the charge sheet when Chelsea was at trial.
The judge, part of our case is that the Chelsea's defense attorney at the time, Mr. Coombs, who did a really good job raising all these issues, raised them to try and get those charges dismissed.
But the military judge presiding over the case didn't do it.
And now I think part of the reason she didn't is the government's prosecution strategy just overwhelmed her.
You know, military justice system isn't like a federal court in the sense that federal judges have teams of law clerks and other people to help sort through all these things.
This judge was on her own, and the prosecution, for whatever reason, inundated her with some of the most extreme positions that could possibly be taken and took arguments that were frankly, you know, very fringe arguments.
And at the end of the day, I think the judge was overwhelmed by all of that and made some poor rulings.
And as a result, those are some of the issues that are in our appeal.
And it's too bad she didn't get offended by that and push back a little bit if it was that obvious what they were doing.
Yeah, you know, I think one thing...
Yeah, you know, I mean, I don't know.
I'm certainly not going to attack the trial judge for some of those things.
What I would say from a legal perspective is that she misinterpreted and misapplied the law.
And I think that the context of what was happening at the time is that the government had lost its mind.
And, you know, it's reflected in the sentencing case with a lot of the sentencing aggravating factors that the government tried to push forward to lay certain things at Chelsea's feet that just had no nexus at all to the disclosures.
And, you know, I think that part of it has to do with the fact that, you know, the government has a particular view about its role in Iraq and Afghanistan, and everything has a publicity element to it, and it wants to avoid embarrassment.
And frankly, you know, it didn't take care of Chelsea when she was in need while she was deployed.
And rather than taking responsibility for some of those things, it's much easier to beat up on an E3, right?
A 22, 23-year-old E3 than it is to deal with some of those more symptomatic problems.
Well, it wasn't so much that they lost their mind and needed meds and that kind of thing.
It was that they wanted to make an example out of Chelsea Manning.
Sure.
Even if you mean well, and even if you really think you're doing the right thing, we will bury you under the brig.
So don't even think about it.
I think that's a good point.
I think that you and I are saying a lot of the same things here.
I think that there's no doubt.
I think what you're saying goes to the point that I just made, actually, which is the government wanted to make an example of Chelsea.
It's much easier to make an example of Chelsea than it is to deal with some of the root causes of what caused this to happen in the first place.
And, you know, let's talk about that for just a second, because it wasn't just that, oh, there was a war and this and that.
The story was, if people will remember back now, we know from the chat logs with Adrian Lamo, et cetera, it was that Chelsea Manning had found war crimes, had been actually ordered to participate in processing Iraqis to be tortured for simply writing articles critical of the government, had found all kinds of evidence of war crimes in the secret level files and said to Lamo in no uncertain terms, even when he was already basically a double agent working for the government and was trying to tempt Manning and say, you could sell these secrets to the Russians and all this stuff.
Manning says, no, I just want the American people to know so that the democratic process will take place and reforms will be made and justice will be done.
And all this, you know, high minded stuff.
And there's no even indication that that's dishonest or that that's a put on or that's for, you know, future reference later or something.
And that is very genuine.
Yeah.
As we say, there's no evidence at all that she intended to harm the interest of the United States or that she acted in a disloyal way.
Yeah, absolutely not.
If anything, she just differentiated between the American people and what the U.S. government had decided the American people needed to know and what was their interest.
Right.
Look, I agree.
I mean, I think that there's no question that Chelsea's intent wasn't the same as what the government portrayed it to be.
You know, they portrayed her as a traitor.
They portrayed her as somebody who was actually trying to put the country's interest in jeopardy.
And there's just no that that's not the case.
It's just wrong.
And but she was sent sentenced as though she did those things.
Right.
That's how she was sentenced at the end of the day.
Well, let me ask you this.
I know that in civilian federal court, you're not even allowed to argue that judge I meant well, that's not even allowed to even be entered into evidence by the defense of any motive.
The only question is whether you did it or not.
And that's why, you know, that's been an argument for why Snowden is unfairly demanded to come home and face the music, because he'll have no real opportunity to defend himself.
But so my question is, is that the same thing?
I forget in this trial whether meant well actually could be a defense under the military law.
Well, the judge did let some motive evidence in.
But I think what you're going to it strikes at the core of the debate over the Espionage Act and whether or not it is constitutional, because there really isn't, you know, one part of our argument.
I think the ACLU does a fantastic job of assisting us in making this argument, which is the whole purpose of an amicus brief, is that the Espionage Act is unconstitutional because it violates both due process and the First Amendment.
But another problem is, is that it doesn't it hasn't been recognized to provide a mechanism for whistleblowers to, you know, exercise their their ability to inform the public about this stuff.
And as part of that, there's been this legal debate over whether your intent, whether you have good intentions, should be allowed in the trial.
And so in Chelsea's case, that was certainly one of the issues.
The judge let some motive evidence in and other evidence she didn't let in, but it didn't solve sort of the structural problem with the Espionage Act, which is that it was never designed as an act to punish whistleblowers.
It was an act that was intended to deal with spies.
And so the other part of that, though, goes to the sentencing of Chelsea's case.
And what I would say is that, of course, Chelsea's intent is absolutely relevant to the way that she should be sentenced.
And unfortunately, those intentions obviously aren't reflected in a 30, 35 year sentence.
I'm confused, though, is it it's the same Espionage Act in civilian federal court is the same one at play in this military court.
You know, and that's one of the most interesting things about this is, you know, my view is and it's certainly only my view.
I'm sure there are people out there that would disagree with me is that a sentence in a trial like this could probably only happen in the military justice system.
If you look at other whistleblower cases, you know, recent whistleblower cases, all those are federal cases.
They're prosecuted in federal court.
But in the military justice system, it's absolutely true that the Uniform Code of Military Justice provides an avenue for military prosecutors to charge federal offenses like the Espionage Act.
So so the three three of the charges that we are specifically trying to have reversed are all federal statutes, Espionage Act being one of them.
Chelsea was convicted of violating 793 E, one of the least serious forms of espionage, because it basically deals with the situation where there was a disclosure, but the government doesn't have to prove that she really had any bad intentions, only that she knew or should have known that the disclosure could have harmed the interests of the United States.
And now, is it worth bringing up legally speaking in terms of the argument that we are talking here about confidential and secret level documents, not top secret, not any of the other levels of classification above top secret?
So I think, you know, I think those sources and methods, I think what your comments actually going to is that the definition of of national security under the Espionage Act is actually so broad that it doesn't really matter if the documents are actually classified or not.
And if you look at the people that have been advocating for either the, you know, the Espionage Act to be amended or declared unconstitutional, that's one of the reasons why is the definition, the definitions are so expansive.
And just by way of example, that's one of the things that we point out that's wrong with this case is the judge interpreted national security information to essentially capture anything involving the military, anything involving, I think she even uses the words national preparedness.
So under the judge's own definition, frankly, anything that has anything to do with the military could conceivably fall under the underneath the Espionage Act.
And so what you're identifying is one of its problems, which is it's so vague that you don't know exactly what it applies to.
Well, and we know in the case of David Petraeus that he had the very highest level sensitive material, including deliberations with the president himself over future Afghan war policy and all this stuff that he had given in volumes to his girlfriend.
And he got away with a slap on the wrist.
Hillary Clinton's got satellite photos of North Korean nuclear facilities.
And they're saying, oh, come on, it was just an email thing.
But here, Chelsea Manning is, you know, finally releasing the Glaspie memo from 1990 and is doing 35 years in the brig.
Well, I think what your point bring, it goes to my one of the points I've raised already, which is I don't think that if Chelsea would have been prosecuted outside of the military justice system that we would have seen a result like this.
It also goes to a point that I raised earlier, which is somebody in Chelsea's position, which is a junior enlisted soldier, right, is going to be treated much differently than a guy like General Petraeus, both of which is inherently and obviously unfair.
And we urge the military court, which is also a unique feature of this proceeding, to reassess the sentence, assuming that it's not dismissed.
All right.
I can tell I'm trying your patience here.
So I'll try to just a couple of actually take your time.
Sorry.
So I learned in here, if I knew this, I forgot.
But the piece of the courthouse news brings up the fact and apparently, you know, paraphrasing from y'all's brief here that the judge originally shaved off 112 days of Manning's sentence for the, quote, unlawful pretrial punishment of Manning.
And so that was something that I guess maybe I did know that and had forgotten.
But that's significant.
Not so much the number of days, but that the judge acknowledged what amounts to I mean, I guess she didn't say mistreatment, but it is mistreatment, but certainly is saying she wasn't just being held so that her rights were protected until due process could be carried out.
She was being punished.
And in what way?
Being held in solitary and naked and in front of guards in a one way mirror and all of this stuff for how many how many months before about nine months.
And, you know, this is this is such a.
And does that include Kuwait and Quantico?
Primarily Quantico.
And let me tell you why.
First of all, what I hope people understand and Chelsea actually wrote a tremendous blog post on this is the problem with solitary confinement.
It's an issue that actually there are lawyers around, you know, trying to fight this issue every day.
And there are not a lot of publicity about it.
And Chelsea understands that her case provides an avenue to bring publicity to that issue.
So, you know, there are two things that are going on here.
One is the military has a unique feature called Article 13 that allows for a remedy when a service member subjected to unlawful pretrial confinement.
And that means essentially that the confinement conditions are so bad that it amounts to a punishment.
And what's really striking in this case is that when Chelsea was moved from Kuwait to Quantico, the military absolutely knew that Quantico was not situated to be able to house Chelsea.
They knew it.
The judge made particular findings about it.
And the military decision makers ignored all of that and put her there anyways.
And so, in addition to the harsh treatment that she sustained, you know, that's one of the reasons why we think that dismissal is appropriate here is because they purposefully put her at a place that they knew they didn't have the resources to house her.
The second thing is the research is overwhelming that solitary confinement has a terrible effect on people that are battling mental and emotional issues.
And, you know, Chelsea was in that place.
And under those circumstances, our view is that it unquestionably equates to cruel and unusual punishment.
And, you know, Chelsea is a service member.
Most cases like this result in a, you know, a monetary damage award to a prisoner.
But in Chelsea's case, she's a member of the military.
And so the law precludes her from being able to ever be compensated, likely.
Hopefully someday somebody will challenge that, but likely precludes her from being able to receive any compensation for those horrendous conditions.
The good thing about being a service member is that this rule, Article 13, provides a mechanism where the court can dismiss the case entirely because of the cruel and unusual nature of her pretrial confinement or award her substantial credit.
And so that's a big piece of what we're arguing is that her conditions were so bad that the case should be dismissed.
If the court does not dismiss it, then it should certainly take into consideration those conditions that she, that punishment that she received before she was ever convicted of anything and substantially reduce the sentence.
And what about the command influence of the commander in chief of all of the armed forces pronouncing Manning guilty?
I think right before the trial, maybe even during the trial, announced that Manning had broken the law.
Look, I totally understand all the concern about doing that.
But that's not one of the arguments in y'all's brief this time.
No, it's not.
And I will tell you that the reason that it's not, frankly, is it's just not an argument that is going to, that's going to win.
It carried the day.
And part of the reason that is that at the end of the day, you know, Chelsea and her counsel elected a military judge alone trial that in civilian world, we call that a bench trial, right?
So basically, because the judge presided over that, I think it would be, it's not likely.
In fact, I think it's virtually impossible for us to prevail on that point, even though publicly, I completely agree with what you're talking about.
And again, it goes back to some of the functions of the military justice system that are a problem.
You know, a convening authority that's run by a military commander who cares only about good order and discipline is running the entire show.
And at the end of the day, all of that flows up to the president of the United States.
And, you know, a federal judge who's the lifetime appointee, you would hope is somewhat insulated from those same concerns that, say, the convening authority would have.
And it goes back to my point of why I think that this sentence happens.
This conviction happens because it's a court martial.
Yeah.
All right.
Now, I hate to hate to say it, but if this doesn't work, how does the process work?
Can you take it to federal civilian court at some point?
Yeah.
So here's the way the procedure works is we're in the first part of the appeal, which Chelsea has a mandatory right to have her case decided by the Army Court of Criminal Appeals.
The Army Court of Criminal Appeals is within the military justice system.
The judges that will preside over Chelsea's case are active duty judges.
So they're JAGs who have sort of worked their way to being an appellate judge.
In the event that we don't prevail in front of that court, then there's a court called the Court of Appeals for the Armed Forces, which is an Article I court, meaning that the judges are appointed by the president, but not to lifetime terms.
And so that court would then decide whether to take any of the issues up on appeal.
And then they would essentially make a ruling.
And then from there, theoretically, it could go all the way to the United States Supreme Court.
And, you know, I obviously we're hopeful that none of that would be necessary because we'll prevail at this stage.
Yeah.
But in the event that we aren't, then we'll keep the fight, you know, we'll keep fighting all the way up as far as as far as they'll let us.
Yeah.
Well, yeah, good luck to you.
I don't mean to to get too far ahead of the game in a negative way there.
I really think that there's obvious ample grounds for y'all to win here.
It's an absolute injustice what's going on for someone who actually is an American hero and not a criminal at all.
Well, we appreciate that.
And I can tell you that I am one of the you know, I understand I'm in a unique position because I actually get to meet with Chelsea and I spent a lot of time with her in the month leading up to filing this.
And I could tell you that every time I see her, she's very appreciative of all the support that she gets.
I can tell that it's encouraging to her, that it's motivating to her, that it's uplifting to her.
And, you know, everyone should rest assured that, you know, I really view Chelsea is the CEO of this entire operation and nobody knows and cares about it more than she does.
You know, she's she's made a sacrifice.
And, you know, as a result of that sacrifice, she has to live inside that prison in Leavenworth, which is not a pleasant place.
So I can tell you that her counsel that we're working as hard as we possibly can to make sure that that one of the most unjust things that ever happened is it's changed.
All right.
Well, thanks very much for all your work and free time on the show.
Appreciate it.
OK, yeah.
Happy to be happy to be on.
All right, that is Vincent J.
Ward, one of the lawyers representing Chelsea Manning doing 35 years in the brig for your government sins there.
Read all about this at Courthouse News.
Manning comes out swinging in new appeal.
All right, John, thanks very much for listening.
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