Tuesday, June 5, 2018

The President's commutation power and the Manning case

The U. S. Army Court of Criminal Appeals has decided the case of United States v. Bradley E. Manning (AKA Chelsea E. Manning). The Court refers to “her” throughout the opinion.  This is because after conviction and sentence she declared a gender change, which in itself became something of a cause celebre.

A military judge sitting as a general court-martial convicted appellant, in accordance with her pleas, of one specification of violating a lawful general regulation and two specifications of general disorders in violation of Articles 92 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934 (2006).  The military judge also convicted appellant, contrary to her pleas, of four specifications of violating a lawful general regulation, one specification of wantonly causing intelligence to be published, six specifications of violating 18 U.S.C. § 793(e), one specification of violating 18 U.S.C. § 1030(a)(1), and five specifications of violating 18 U.S.C. § 641, in violation of Articles 92 and 134, UCMJ.

The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for thirty-five years, forfeiture of all pay and allowances, and reduction to the grade of E-1.  The military judge credited, and the convening authority approved, 1,293 days of confinement credit, 112 days of which was Article 13, UCMJ, credit.

On 17 January 2017, President Barack Obama commuted appellant’s sentence of thirty-five years imprisonment to time served plus 120 days, leaving intact all other conditions and components of the sentence.  Thereafter, appellant conceded two of the initial assigned errors as moot based on the President’s commutation.

After a thorough review the Court set aside one of many specifications and then proceeded to reassess the sentence.  Manning had asked the appellate court to grant substantial additional credit for unlawful pretrial punishment—reducing the sentence from 35 years to 28 years.  The Court did not do that, and in the process noted the substantial clemency through the presidential commutation.

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