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A Real Democracy Would Strip the Military of Court-Martial Jurisdiction Over Whistleblowers

How the Manning Trial Betrayed the Constitution

by ROB HAGER

In its third century the United States is undergoing a continuous constitutional crisis.  To mention just some of the most recent lowlights of that crisis, the Supreme Court has made a frontal assault on voting rights and election integrity, by usurping both state and federal legislative powers over elections.  A FISA Court appointed by the ringleader of this coup d’etat against democracy, Chief Justice Roberts, has excercised legislative powers to “legalize” mass surveillance in collaboration with a lawless executive branch in flagrant violation of the Fourth Amendment.

The fundamental structural defenses against tyranny –  the separation of powers and federalism – are collapsing, while the democratic liberties enumerated in the Bill of Rights are eroding.  These developments are the product of an elite political class consolidating the power necessary to impose the extreme economic inequality of a plutocratic tyranny in a time of a disintegrating civilization.

Those at the forefront of undermining the Constitution are acting in violation of their oaths as “executive and judicial officers … to support this Constitution.”  Art, VI, cl 3.  Bradley Manning, like every other member of the military subset of those officers, took this same oath to uphold the Constitution.  He fulfilled that oath by disclosing war crimes.  Those who have imprisoned and court-martialed him stand in violation of their constitutional oaths.

Ultimately, whether the Constitution will remain relevant as the United States continues its decline into a tyrannical plutocracy will depend upon whether the military will fulfill its oath to uphold the Constitution or will instead redefine its mission as the extra-constitutional guarantor of a new political order where might backed by money makes right.  For citizens who insist that the Constitution is the highest law of the land until citizens themselves, not corrupted politicians in service of their paymasters, choose to repeal or amend it and who reject the idea that right comes out of the barrel of a gun, there is no more important task than challenging the military to live up to its collective oath to support the Constitution above all other motives or values.

The military under its civilian commander in chief denied Bradley Manning his constitutional right to a jury trial under the Sixth Amendment to try charges of whistle-blowing that took place off the battle-field, in the absence of any battlefield emergency situation where judicial insistence on constitutional rights might compromise the military’s ability to conduct warfare and discipline troops.  Bradley Manning was prosecuted for conduct that was not military in nature but rather in fulfillment of his oath to a higher purpose, to uphold the Constitution.  His interest as a citizen to share his knowledge with other citizens about the crimes being committed in their name was inherently civilian in nature, not military.

This denial of Bradley Manning’s rights also deprived “we the people” of our  constitutional rights to witness a “public trial” as guaranteed by the Sixth Amendment and to have our views represented on a fairly selected, representative civilian jury.   Though the efficacy of juries has come into question recently in the Trayvon Martin case, it remains true that a fairly impaneled jury, competently informed by the agency of lawyers, and instructed by an impartial judge, can be fairly representative of, and a legitimate disinterested proxy for, informed public opinion.  This process is the bedrock of democracy by guaranteeing that no one may be denied life liberty or property except upon trial by their peers who are resonant of informed public opinion.

Attorney General Eric Holder tried to put a happy face on a former democracy seen by the world as slipping into a totalitarian tyranny when recently seeking, not to legally extradite Edward Snowden, but rather to have him “returned” from Moscow like a wayward piece of imperial baggage, like a “subject” of a despotic state rather than a citizen of a republic.  Holder not only made the embarrassingly necessary formal promise not to kill or torture Snowden, but also stated the basic ground rules that Snowden would be tried in an Article III “civilian court … supervised by a United States District Judge” with “all the protections that United States law provides.”  Holder concedes in his letter that “the United States would have to prove [Snowden's] guilt beyond a reasonable doubt to a unanimous jury.”

There is no valid reason under the U.S. Constitution why Bradley Manning, whose conduct served the same patriotic goals as Edward Snowden, should not be entitled to the same constitutional rights that Eric Holder, with unearned innocence, holds out to Snowden as inducement for Russia to deny Snowden asylum.  That Bradley Manning chose a career of service to his country in the armed forces, honored his oath to support the Constitution, but did not – or did not have the opportunity to – seek timely refuge in a country just beyond the reach of reliable imperial coercion constitutes no justification for denying Manning constitutionally guaranteed rights.

The US Military, sworn under oath “to support this Constitution,” maintains the paradoxical notion that it can operate as a Constitution-free zone in its treatment of soldiers like Manning.  But in the leading case on the constitutional authority of Congress to permit the military to conduct constitution-free courtmartials, Toth v Quarles, 350 U.S. 11, 21-22 (1955), the Supreme Court held that “the constitutional grant of power to Congress to regulate the armed forces …  itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause.”  The Court goes on to explain: “There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. . . .Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.”  350 U. S. 22-23.

So far this broad principle has been applied mainly to safeguard the rights of honorably discharged soldiers, as well as civilians, even if tried abroad, Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960), including the military’s own civilian employees. Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. Guagliardo, 361 U.S. 281 (1960).  Though these principles have wavered during the witch hunts of the “war on terror” and its attendant conventional wars, they were nevertheless upheld even for non-citizens charged as “enemy combatants,” at least insofar as application of the right to habeas corpus.  Boumediene v. Bush, 553 U.S. 723 (2008)

Bradley Manning’s court-martial betrays the military’s universal oath to support the Constitution.  It ignores the Bill of Rights guarantee of a jury trial in cases, like Manning’s, involving other than uniquely military crimes like mutiny or desertion, e.g.  Dynes v. Hoover, 61 U.S. 20 How. 65 (1857), or cases not driven by other exigencies of the actual battlefield.  Though the Court has enforced the practice that the “rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty,” Parker v. Levy, 417 U.S. 733 (1974) (Rehnquist, C.J.), in Toth, 350 U. S. 17, the court specified that the “trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function.”  Manning’s purpose to fulfill a sworn higher duty to the public under the Constitution that resulted in releases of information entirely remote from any battlefield or any “fighting function” can provide no justification for suspending his rights.

Keeping secrets of crimes is not related to a legitimate “fighting function,” nor is the revelation of those secrets.  In O’Callahan v. Parker, 395 U.S. 258 (1969), where the Court refused to subject a member of the military to court-martial and insisted upon trial in a civilian court on a civilian criminal charge, the Court warned that “expansion of military discipline beyond its proper domain carries with it a threat to liberty” because  “military law has always been, and continues to be, primarily an instrument of discipline, not justice.”  395 U. S. 266.  The trial of civilian crimes, such as Espionage Act charges, in military tribunals violates the exclusive grant of judicial powers to the civilian courts.  “[T]he principle that crimes committed by soldiers should be tried according to regular judicial procedure in civil, not military, courts, if any were available, were among the grievances protested by the American Colonists.” Id. 270. With respect to Manning’s case involving whistle-blowing in service of the broader public and the Constitution, in compliance with the same oath taken by all civilian officers, as said in O’Callahan,  “we deal with peacetime offenses, not with authority stemming from the war power.” Id. 275

The battlefield exception that supposedly justifies the betrayal of the Constitution, in fact, under the constitution itself, expressly excuses skipping only the Fifth Amendment Grand Jury indictment or presentment of a soldier who is “in actual service in time of War or public danger.”  Although the Supreme Court has ruled since Ex parte Quirin, 317 U.S. at 39-40 (1942), that courtmartials “are deemed excepted by implication from the Sixth” Amendment under the same circumstances that a Grand Jury is expressly waived under the Fifth Amendment, the Constitution’s express waiver of a formal indictment in such circumstances is better interpreted as implicitly prohibiting waiver of a Sixth Amendment trial by petit jury under those same circumstances when the Sixth Amendment contains no similar waiver.  This logic is reinforced by the 10th Amendment reservation to the people of all such rights not expressly foresworn by them to the government.

The denial of jury trial “by implication” of text which actually implies just the opposite should be rejected as an affront to the Constitution.  The concept originates in Ex parte Milligan, 71 U.S. (4 Wall.) 2, a Civil War case that held that a “guarantee of freedom was broken when Milligan was denied a trial by jury,” even after habeas corpus had been validly suspended.  The offending passage waiving the right of certain active duty military to a jury trial occurs in totally extraneous dicta, since the sole defendant in Milligan was a civilian.  The sum total of the Milligan Court’s reasoning is a classic example of the logical fallacy of begging the question.

The Milligan Court surmised that “the framers of the Constitution doubtless meant to limit the right of trial by jury in the sixth amendment to those persons who were subject to indictment or presentment in the fifth.”  One immediately responds that if the framers meant to so limit the Sixth Amendment, since they just demonstrated that they knew how to do so in the Fifth Amendment, why did they not simply cut and paste the same waiver text into the Sixth?  The fact that the framers did not do so logically communicates that they did not intend to do so – not the opposite.  Indeed the  Milligan Court gave this very answer to the implication that suspending habeas corpus also suspended jury trials: “if [the Constitution] had intended this result, it was easy, by the use of direct words, to have accomplished it.”

Moreover, that the framers did not do so has a logical explanation.  Waiver of a Grand Jury indictment or presentment would justify immediate arrest and jailing until trial, thereby enabling immediate and long term legal removal of an offender from the battlefield upon mere information, without the inconvenience and delay of having to convene a Grand Jury.  This makes perfect sense to permit emergency action under the conditions of war.  But waiving trial which could take place far from a battlefield under circumstances subject to control of judicial and police authorities does not make similar sense.  The actual text of Amendments Five and Six of the Constitution, waiving solely the Grand Jury ordinarily prerequisite to trial, but not the jury trial itself therefore makes perfectly good and practical sense.  There is no basis for concluding that waiving the first right to a Grand Jury charge, which under circumstances of war might entail extreme inconvenience, also “implies” waiver of jury trial which does not entail any necessary inconvenience at all when the offender is or easily could be held in a place where a court is sitting, as Manning has been for several years.

By the express terms of the Constitution Bradley Manning is entitled to a full Sixth Amendment jury trial.  The military is in violation of its oath to uphold the Constitution until it releases Bradley Manning to civilian authorities for purposes of providing him his constitutional right to a trial by a jury of his peers.

Manning is essentially charged with serving the higher good of the people rather than the omerta policy of the military apparatus designed to keep their dirty secrets.  The military has decided that their omerta policies trump the interests of the broader public.  The military was given an opportunity to defer its own conflicting interests in secrecy to the people’s higher right to know.  It failed.  It redefined espionage as telling the truth to the American voter about misdeeds the militiary prefers to hide.  The remedy is now for Congress to amend the Military Justice laws to provide that whistle-blowers must be tried in a constitutional court and not be punished under the guise of a military disciplinary proceeding.  The military has lost its credibility to try such cases.

Just as a close minority of Congress by voting to rein in Obama’s mass surveillance program legitimized Edward Snowden’s patriotic service in exposing high level constitutional violations, a similar vote – not for mere symbolic actions –  but insisting that Manning, and other whistle-blowers like him, be accorded full constitutional rights would serve a similar purpose.

Under the Constitution it is the people, through the constitutional process of a civilian jury trial, not the military apparatus, who must be the judge of whether Manning’s selfless act of service to the people is deserving of punishment.  So long as the military continues to hold Manning they are denying him the speedy and civilian trial that the Constitution requires.

Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief in the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal development and anti-corruption issues.