When I sat down to talk with Albuquerque lawyer Nancy Hollander recently, she was preparing to jet off to London for an international conference on protecting whistleblowers. Later in the summer, she was planning to fly to Guantanamo Bay in Cuba to meet with two of her clients – suspected terrorists who are being held in the detention center there.
But it’s the Southwest Airlines flight between Albuquerque and Kansas City where Hollander will be earning her frequent flier points.
Hollander and her law partner, Vincent Ward, are the newest lawyers for Army Pfc. Chelsea Manning, the famous transgender WikiLeaker who is doing time at Fort Leavenworth, Kan., for violating the Espionage Act. For the foreseeable future – probably for years to come – they will be shuttling between Albuquerque and Kansas to mount Manning’s legal appeal.
It’s yet another high-profile case for Hollander who, at 70, might be excused for slowing her law practice down instead of jumping into a complicated, high-stakes national security case.
“We have a lot of work to do,” Hollander says, underselling the immensity of the task ahead.
Manning, an intelligence analyst then known as Bradley Manning, was convicted last July of six violations of the Espionage Act and other offenses for giving WikiLeaks hundreds of thousands of secret State Department cables and Iraq and Afghanistan battlefield logs. Manning was acquitted of the most serious charge, aiding the enemy, and was sentenced in August to 35 years in prison.
After the sentencing, Hollander received a letter from Manning asking for her help, and she and Ward, a former judge advocate general in the Navy, agreed to take on Manning’s appeal.
They met with Manning at Leavenworth, and Hollander said she found her new client well-read and dedicated to her own defense.
“She’s very smart, and I anticipate she’s going to be a very big help to us as we go forward,” Hollander says.
The lawyers are at the earliest stages of reviewing the court record, which fills 111 volumes. (Hollander was on Volume 17 when we spoke.)
“Of course, it’s too early to know what all the issues are,” Hollander says, “but there are some glaring issues that we already know about.”
Hollander sees problems with Manning’s treatment before her trial – she was kept in solitary confinement – with how witnesses were excluded, and with the sentence, which is steep compared with ones given for similar offenses.
But No. 1 on that list is the Espionage Act, the federal law under which Manning was charged.
“It was created during war hysteria in 1917, but it was never intended for whistleblowers,” Hollander says. It is being applied selectively, she says. “And now you can be convicted under the Espionage Act, as she was, for simply an intent to disclose national security information. There doesn’t have to be a showing that you intended to aid the enemy or harm the U.S.”
There’s no dispute that Manning, in her capacity as an intelligence analyst, collected and disclosed classified information in 2010 during the Iraq War. In a recent essay in The New York Times, Manning said she understood her actions violated the law.
The law as it was applied against Manning – and could be against government officials who leak classified information or journalists who publish it – doesn’t require a showing that the leak was meant to harm the United States.
Hollander says, like other practices that have been challenged in the courts and changed in landmark Supreme Court decisions, “It’s just wrong.”
Hollander said Manning’s Espionage Act conviction bring to mind Brown vs. Board of Education, the 1954 case that found separate public schools for black and white students were unconstitutional, or Gideon vs. Wainwright, the 1963 case that found courts must provide counsel in criminal cases to defendants who are unable to afford to pay for their own attorneys.
“You can’t go in and say, ‘This is the law; we’re screwed.’ You have to say, ‘This is the law, and it needs to change.’ And a court needs to really look at this and say, ‘What are we doing here?’ ”
Did anything in the reams of data and communications Manning funneled to WikiLeaks founder Julian Assange, aid the country’s enemies? Prosecutors said it did, and it definitely embarrassed the government, especially the video that showed a U.S. Apache helicopter opening fire on a group in Baghdad mistakenly thought to be insurgents. Twelve unarmed Iraqi civilians and Reuters journalists were killed.
While Manning’s appeal is pending, she’s also working with her trial attorney, David Coombs, on issues related to her prison confinement. Manning, diagnosed by military doctors with gender dysphoria, presents as a man – short hair and a man’s prison uniform – in the men’s prison barracks where she lives in the general population, Hollander says.
She has asked for hormone replacement therapy while in confinement and so far been denied because transgender people are not allowed to serve in the U.S. military (although a recent national survey estimates 8,800 transgender people are in active duty and another 6,650 are in the National Guard and reserve) and the Defense Department does not provide gender-changing treatment.
The Pentagon has considered transferring Manning into the civilian federal prison system, which does allow such treatment.
How do we know that? Because of a news story relying on anonymous sources. Someone in the Pentagon leaked the plan.