If this doesn’t make us stop, and think, and weep, and move into action, what will?
January 9, 2013
by Charles Pierce
military judge named Colonel Denise Lind handed down a ruling yesterday in the case of Bradley Manning, the Army private who’s facing life in prison this March for having delivered various secret documents to WikiLeaks. It was the opinion of Colonel Lind that the United States government had imposed upon the imprisoned soldier a regime of incarceration that was “more rigorous than necessary,” and, further, that some of Manning’s treatment while in the brig, “became excessive in relation to legitimate government interests.” For example:
Manning was kept alone in a windowless 6-by-8-foot cell for 23 hours a day and forced while on suicide watch to sleep in only a “suicide smock,” which military officials said was standard procedure when inmates are believed to pose a risk to their own safety. In March 2011, after eight months of confinement, Manning had quipped sarcastically that he could kill himself with the elastic of his underwear if he wanted to. Manning, 25, has acknowledged contemplating suicide shortly after his arrest but said that he tried to convince guards for month that he was not a threat to himself or anyone else. At Quantico, he was monitored 24 hours a day, at times growing so bored and starved for companionship that he danced in his cell and played peekaboo with guards and with his image in the mirror – activity his defense attorney attributed to “being treated as a zoo animal.”
And then, alas, Colonel Lind took something of a dive. She ruled that, based on this treatment, Manning’s eventual sentence would be reduced by 112 days – which would be cold comfort if Manning were to get socked for a couple of decades in the slam – and she also ruled, spectacularly, that:
Flynn had acted appropriately to ensure that the brig staff followed procedures correctly and that they took the “high ground”. She found that there had been no intention to punish the inmate on the part of the brig staff or the chain of command, who were motivated purely by a desire to ensure that the soldier did not harm himself and that he would be available to stand trial.
This case is a mess, legally, ethically, morally and every other way. We are to believe through this ruling that Manning was treated more rigorously than was necessary and that his treatment was more excessive that legitimate government interests demanded, but that nobody in authority ordered it, nobody in authority countenanced it, and that nobody in authority will be called to account for it. It just happened, like a power outage, or a problem with the plumbing and, if there was somebody ordering it, or countenancing it, or in authority over it, it was all for Manning’s good, anyway. Both things cannot be true. If Manning’s treatment was more rigorous than was necessary and that it exceeded what was required to meet legitimate government interests, then it cannot have been done for Manning’s benefit, and somebody ordered the excesses and somebody countenanced them and somebody carried them out.
We do not have to be children here. Bradley Manning could have been confined in conventional imprisonment and brought to a simple trial. The only reason to drag this case out, and to engage in the conduct that Colonel Lind described, was to coerce him into implicating other people. Nothing else makes any possible sense. We are not required to disengage our brains in cases like this. We are repeatedly encouraged to do so, however.
We have lost control of our criminal justice system in cases like this. Due process has become so malleable as to lose its internal logic. Between the seemingly endless echoes of the 9/11 attacks through the law, and the improvisational gymnastics the government has undertaken to do what it wants to do anyway, the country’s most fundamental principles have become lost. And yet, we keep trying to gussy up our authoritarian impulses in the robes of the law, to make marble tributes to our undying virtues out of our spontaneous terror that the rule of law is the source of our most dangerous weakness. This is not sustainable. We must be one or the other.
Bradley Manning is only one person caught in this dim, twilight democracy. Entire legal institutions are beginning to fade into it as well. The invaluable Charlie Savage of The New York Timesexplored the darkening terrain whereon government lawyers are beginning to discover that the illegitimacy of the prison at Guantanamo Bay may have made it impossible to conduct legitimate trials of some of the last people still held there.
The two defendants were found guilty in 2008 by a tribunal on charges – including “material support for terrorism” – that the Justice Department concedes were not recognized international war crimes at the time of their actions. In October, an appeals court rejected the government’s argument that such charges were valid in American law and vacated the “material support” verdict against one of the men, a former driver for Osama bin Laden. Administration officials are now wrestling with whether to abandon the guilty verdict against the other detainee, a Qaeda facilitator and maker of propaganda videos. He was convicted of both “material support” and “conspiracy,” another charge the Justice Department has agreed is not part of the international laws of war, and his case is pending before a different panel of the same appeals court…Robert Chesney, a law professor at University of Texas at Austin who specializes in the law of war, said the most important part of the debate involved cases where the evidence shows a person joined or supported Al Qaeda but was not linked to a particular attack. The dispute brings to a head a long-building controversy over the ability of military commissions to match civilian courts on this issue, he said. “In the civilian court system we have powerful tools for charging people in preventative circumstances who are not directly linked to an attack, and they are the charges of conspiracy and material support,” Professor Chesney said.
We can try people for terrorism in civilian courts. We have done that, and we have done it well. All of our clever improvisations have brought us face to face with legal and ethical failure, in the case of Bradley Manning and in the case of the Gitmo prosecutions, and generally everywhere else we have tried to get out from under the commitments we have made to each other by submitting ourselves to the Constitution. We stopped trusting it, and then we stopped trusting each other, and look where that’s gotten us. We look like fools, and worse.