Along with pardoning Manning, Obama should have repealed 1917 Espionage Act

By Juan Cole | (Informed Comment) | – –

In a daring and bold move that showed his profound humanitarian side, President Obama has commuted the 35-year sentence of Chelsea Manning, a transgender woman and former military intelligence analyst who in 2010 leaked hundreds of thousands of State Department cables and also some Iraq and Afghanistan military logs to the Wikileaks organization, which shared them with the press.

Manning’s leaks are credited in some quarters with helping to galvanize Tunisian youth and activists against the brutal dictatorship of Zine el Abidine ben Ali. The argument is that people assumed that Ben Ali was authoritarian but relatively upright and that the corruption was committed by the people around him, whereas State Department cables demonstrated that he personally asked for kickbacks. It is certainly the case that opposition webzines like Nawaat.org in Tunisia translated the cables immediately into Arabic. Manning has been criticized for her scattershot publication of so many documents rather than for whistleblowing, i.e. concentrating on a particular injustice. In the case of Tunisia, some of the released cables did function as whistleblowing. France and the US in public tended to reassure the world that Ben Ali’s regime was a bulwark against radical Muslim fundamentalism and was improving the lives of its citizens. It was perhaps only just that the sordid reality be exposed to everyone, including the Tunisian people, who now have the only democracy in the Middle East. (Lebanon is too dysfunctional and dominated by a party-militia to fit that bill; Turkey is veering sharply toward authoritarianism, and Apartheid Israel with 4 million people under military colonialism doesn’t count by a long shot).

According to a UN inquiry, Manning was tortured when held for 11 months in the brig at Quantico. She was kept in solitary confinement and put under a “suicide watch” by her jailers despite the opposition of her own physician. The watch involved being made to sleep nude and enchained and being woken up many times each night to be checked, for months on end. The suicide watch was a mere pretext to subject her to the sleep deprivation techniques that are an important arrow in the quiver of contemporary torturers. She still bears the cognitive and emotional scars of this treatment, according to Glenn Greenwald, who has interviewed her.

Obama’s commutation of her sentence is all the more surprising because his administration was the hardest in recent memory on whistle blowers and on the journalists to whom they leaked. The idea that whistle blowers should have gone through channels is challenged by the substantial evidence that employees who came forward with concerns faced retaliation. One of the tools Attorney General Eric Holder used against these brave individuals, who were trying to correct some pernicious practice, was the Espionage Act of 1917. This unconstitutional monstrosity was passed at the height of the Red Scare and the immigration hysteria during World War I.

UShistory.org explains:

“Once Congress declared war, President Wilson quickly created the Committee on Public Information under the direction of George Creel. Creel used every possible medium imaginable to raise American consciousness. Creel organized rallies and parades . . .

Still there were dissenters. The American Socialist Party condemned the war effort. Irish-Americans often displayed contempt for the British ally. Millions of immigrants from Germany and Austria-Hungary were forced to support initiatives that could destroy their homelands. But this dissent was rather small. Nevertheless, the government stifled wartime opposition by law with the passing of the Espionage and Sedition Acts of 1917. Anyone found guilty of criticizing the government war policy or hindering wartime directives could be sent to jail. Many cried that this was a flagrant violation of precious civil liberties, including the right to free speech. The Supreme Court handed down a landmark decision on this issue in the Schenck v. United States verdict. The majority court opinion ruled that should an individual’s free speech present a “clear and present danger” to others, the government could impose restrictions or penalties. Schenck was arrested for sabotaging the draft. The Court ruled that his behavior endangered thousands of American lives and upheld his jail sentence. Socialist Party leader Eugene V. Debs was imprisoned and ran for President from his jail cell in 1920. He polled nearly a million votes.”

Obama and Holder have bequeathed yet another tool of authoritarianism (along with a revived domestic surveillance program) to the incoming Trumpian troglodytes. Instead of resorting to the Espionage and Sedition Act, they should have worked alongside Libertarian Republicans to get rid of it. Pardoning one person, however praiseworthy, doesn’t make up for developing anti-democratic techniques that have now been passed on to the most anti-democratic government in recent decades.

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Related video:

TYT Politics: “BREAKING: Chelsea Manning FREED By Pres. Obama”

19 Responses

    • A presidential pardon can remove the criminal consequences of anything but impeachment, which is why Nixon resigned before he could be impeached. The president does NOT have the power to reimpose them, which is what “pardon revocation” would mean. (Thanks to Brian C. Kalt in the Washington Post link to washingtonpost.com).

      See also ex parte Garland, 71 US 333 – Supreme Court 1866. Interesting summary here:

      link to scholar.google.com

      A president DOES have power to rescind presidential pardons which have not been delivered (exercised by Grant in 1870). I would assume that Chelsea Manning’s pardon has been delivered.

  1. Obama pardoning Manning is odd to say the least, for Obama declared Manning guilty even before the sham show trial that Manning had. I’m sure I heard Julian Assange say the other day that if Manning was released he would give himself up to the Americans. If he did then he can’t have had much sleep last night! However, as Obama and Clintonites have made it quite clear that they hold Putin responsible for the various leaks which they erroneously claim won Trump the election, what do they want with Assange? The fact is Trump was never meant to win the election or even win the primaries any more than was Sanders meant to win his primaries. These two were mere tokenism to the democratic process which gave an air of inclusiveness and respectability to democracy. Both the Republicans and the Democrats have been stung to the very core because a complete outsider has had the temerity to stand for election and has actually won. We have a similar set up in this regard over here in the UK . Americans may well have heard of the Monster raving loony party which always stands in British elections. Of course, they get no where and they are tolerated only because they give colour and the notion of free inclusive elections. I say again, the unemployed voters in the wastelands of Detroit and other once great industrial cities, voted for Trump because he spoke to their concerns. I doubt many of these people were exercised or having sleepless night by Trump idea of having good relations with the Russians. Those who make fortunes out of the war industry however, have really got their knickers in a twist! It will be interesting to see if Manning is able to do the rounds of the talk shows or write a book or something.

    • “It will be interesting to see if Manning is able to do the rounds of the talk shows or write a book or something….”

      I wonder if there is going to be any legal restriction against such conduct imposed as a condition of Obama granting executive clemency.

      Released ex-spy Jonathan Pollard had such restrictions placed upon him by the U.S. Parole Commission which prevented him from giving a speech during his well-attended “coming out bash” in Manhattan – resulting in his wife making the presentation.

  2. A truly noble sentiment, but….

    The reaction of Republican “moderate” Senator John McCain to the Manning pardon is an indicator of how quixotic would be any attempt at repealing that odious law.

    • Both Senator McCain and House Speaker Ryan’s comments are well-taken as Manning’s conduct resulted in a deserved court-martial and dishonorable discharge along with a substantial term of imprisonment of which he will serve seven years once Obama’s commutation becomes effective in May of 2017. Those who breach their duties as soldiers need to be made an example of.

      His own defense attorney during the sentencing phase of court-martial proceedings requested a sentence of “not more than 25 years” so the 35 year term imposed is not outrageous.

      Manning is likely one who should have been weeded out the U.S. Army before (s)he caused the damage (s)he did. He had been slated for discharge due to his behavior in basic training – but that decision was rescinded. Much like the PFC Steven Green rape and murder case in Iraq was preceded by a finding that Green’s anti-social personality diagnosis should have prevented him from staying in the military – Green recently died from fatal injuries sustained in a suicide attempt while serving life in prison; Green’s story became the inspiration of the Mark Cuban film “Redacted”.

      That said, there are mitigating circumstances upon which I believe Obama was right to grant executive clemency:

      (A) unlike the Jonathan Pollard and Walker family spy scandals, Manning did not appear to be motivated by monetary considerations, but rather altruistic concerns;

      (B) Manning had been abused during his/her incarceration by the government, as confirmed during a UN investigation;

      (C) he was disciplined at Fort Leavenworth for attempting suicide, which resulted in a second attempt – it is highly unusual in American criminal jurisprudence in this era to prosecute an individual for a suicide attempt;

      (D) Manning may have likely killed himself – as PFC Green did – if Obama had denied sentence commutation;

      (E) Manning’s leaks did not cause the vast extent of damage to national security as the Jonathan Pollard and Walker scandals clearly did;

      (F) Manning was clearly a person with an unstable past that the military should have recognized before they placed him in such a highly sensitive position;

      (G) Manning did already serve a substantial sentence.

      The public is wrong, however, to characterize Manning as a hero – his conduct was reprehensible and disgraceful.

      • “Those who breach their duties as soldiers need to be made an example of.” Baloney.
        Their duties as soldiers are to resist unjust and illegal wars.
        The simpering careerists who followed all those illegal orders, and are still doing so, are the ones who should be prosecuted.
        Veterans For Peace

  3. She was not pardoned; he sentence was commuted. There is a big difference, See the Intercept report on this especially the comments,

  4. Laraine Flemming

    Absolutely, I am sorry to say he has used Espionage Act more than any other previous president in order 2 prosecute whistle blowers

  5. Daring and bold, yes, but “his profound humanitarian side”? That might be valid, Juan, if you can demonstrate that none of Obama’s numerous drone attacks have killed any innocents.

  6. Manning wasn’t pardoned, his sentence was commuted. That gives Assange a technicality to refuse extradition and Obama the appearance of not being too soft on a leaker, especially considering the ordeal that Manning has already endured.

    • I was wrong about the word “pardon”. Assange used the word “clemency” and a commuted sentence certainly qualifies as such.

  7. Republican “moderate” an oxymoron; Sen McCain a vicious moron.
    I wonder if the pardon is not a trick to ensure Assange is captured and incarcerated for ever in a US hellhole.( i hope he is not stupid enough to fall for it).

  8. Each day Chelsea Manning remained in prison would have been a reminder of Barack Obama’s role in her persecution and the contempt he and many others have shown towards the Constitution.

  9. The hypocrisy out of the “conservative” cabal regarding Manning’s commutation is truly astounding but not surprising. “But Manning broke the law” they say. This pious claim or something similar was disgorged from the mouths of vile warmongers who pushed for the greatest violation of international law of this 21st century that has resulted in the death, mayhem, and displacement of millions of people and continuing chaos from Afghanistan through the Middle East to Libya. And these vermin are pushing for more wars, including one against Russia. Talking of Russia, don’t be surprised if these same wretches blame Vladimir Putin for the illnesses that required hospitalization of Poppy and Barbara Bush.

  10. Professor Cole – We need the Espionage and Sedition Acts of 1917 for the Trump administration malfeasance they intend. They are already cavorting with Russia, AN ACTUAL ENEMY and actively stabbing at China with Trump surrogate U.S. Senator Cruz meeting with Taiwanese leadership in Houston, this January. link to chron.com

    “The majority court opinion ruled that should an individual’s free speech present a ‘clear and present danger’ to others, the government could impose restrictions or penalties.” As the ego-maniacal unqualified new President takes over the Espionage and Sedition Acts of 1917 may come in handy when things soon get out of hand?

  11. Why not release Chelsea Manning immediately? Too much time left between now and her release date for those who don’t want her released and can prevent it one way or another.

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