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How Bradley Manning's Fate Will Be Decided

The soldier accused of giving files to WikiLeaks will likely face a court-martial -- an expert explains how it works.

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The big difference as compared to a civilian federal judge is that a military judge doesn’t have life tenure. The judge in an Army court-martial is guaranteed tenure for only three years, which in my opinion is inadequate. Individually the judges may be perfectly independent, but in terms of the structural protections, the U.S. system is highly deficient in this area.

So the concern is that these judges might be worried about their later career and that affects how they hear cases?

Yeah, that’s the theory. Three years is shorter than any comparable criminal court in this country.

Turning to the trial itself, are the rules different than in a civilian court?

No, the rules are essentially the same as a federal district court. The rules of evidence are a virtual carbon copy, the rules of how people conduct themselves, and so on. Courts-martial are also open to the public, except to the extent that classified information is involved. Even then, only the bare minimum needed to protect the information is closed to the public.

If Manning is ultimately found guilty, how does the sentencing work? 

If there is a jury, the jury will do sentencing. Remember, he can waive the jury. But he can’t waive only on sentencing; he would have to waive it on guilt-or-innocence and sentencing together. If he waives the jury, the judge will decide both guilt or innocence and determine the sentence. If Manning goes with a jury, the sentence is determined by the jury. And anything in excess of 10 years has to be decided by a three-fourths vote. If it were a capital case — which it’s not — there would have to be 12 members of the jury and they would have to be unanimous.

What about appeals — can he appeal if he is found guilty?

The first level of review after a case is tried and there is a sentence is to the convening authority. He or she can disapprove the conviction, can cut the sentence and so forth. He or she can overturn the result of the trial. After the convening authority acts, it goes automatically to the Army Court of Criminal Appeals, which is made up of military officers who sit in northern Virginia. There are lawyers on both sides, and briefs are filed, and there may be oral argument. Then they will issue a decision. From there, assuming the case is affirmed, Manning would have the right to petition for discretionary review by the U.S. Court of Appeals for the Armed Forces. That’s a civilian court of five judges who sit in Washington, D.C., with proceedings open to the public. If they granted review, there would be an oral argument, and the case would result in a decision. If that court grants review, then the case becomes eligible for review by the Supreme Court. The Supreme Court can refuse to hear it, but at least Manning would have the right to ask the Supreme Court for review.

 
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