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Tuesday, 12 April 2011

Is Bradley Manning Obama's "enemy combatant"?

Barack Obama was elected on a wave of revulsion at the gross human rights and other violations and illegalities of the George W. Bush administrations. Obama pledged to change all that and restore America's global image and standing. He was going to respect the rule of law, promote peace and dignity to all peoples, and outlaw torture of terror suspects. He was, symbolically, showing his commitment to the latter by closing within one year the Guantanamo Bay detention facility. This has not happened; indeed, the administration has re-introduced military tribunals there. In addition, Obama successfully fought a legal attempt to extend constitutional protections to inmates at the Bagram Air Base torture prison.

The treatement meted out to Private Bradley Manning, who is yet to have his day in court and has been found guilty of no offence, is unconstitutional and may constitute torture. The UN is investigating the case, Amnesty is monitoring Manning's conditions, and even the "pro-American regime" of David Cameron has deigned to express its "concerns" at Manning's treatment in a military prison (Manning, it turns out, has a Welsh mother).

The letter reprinted below is signed by some of the most eminent constitutional lawyers in the USA, including a former teacher of Obama's at Harvard, where Obama learned his constitutional law. The letter is significant because it represents the voice of liberal former supporters of the Obama campaign and administration who point up Obama's own background as a constitutional lawyer and teacher.

The harsh conditions of Bradley Manning's detention show up one other fundamental truth: that when a nation commits itself to cruelty and torture abroad, it is only a matter of time before it brings those practices home - to be meted out to its own citizens when they step out of line and challenge the powers that be.

Obama's style is restrained, sober, and moderate in tone. Unlike Sarah Palin and others, he does not call people "al Qaeda" and so on. He uses language with considerable skill. He has called Manning's treatment "appropriate". It is not an understatement to suggest that Manning is Obama's 'enemy combatant' whose personality should be broken down for its demonstration effect to other would-be whistle-blowers.

This letter was published in the New York Review of Books.

Bradley Manning is the soldier charged with leaking US government documents to Wikileaks. He is currently detained under degrading and inhumane conditions that are illegal and immoral.

For nine months, Manning has been confined to his cell for twenty-three hours a day. During his one remaining hour, he can walk in circles in another room, with no other prisoners present. He is not allowed to doze off or relax during the day, but must answer the question “Are you OK?” verbally and in the affirmative every five minutes. At night, he is awakened to be asked again “Are you OK?” every time he turns his back to the cell door or covers his head with a blanket so that the guards cannot see his face. During the past week he was forced to sleep naked and stand naked for inspection in front of his cell, and for the indefinite future must remove his clothes and wear a “smock” under claims of risk to himself that he disputes.

The sum of the treatment that has been widely reported is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment and the Fifth Amendment’s guarantee against punishment without trial. If continued, it may well amount to a violation of the criminal statute against torture, defined as, among other things, “the administration or application…of… procedures calculated to disrupt profoundly the senses or the personality.”

Private Manning has been designated as an appropriate subject for both Maximum Security and Prevention of Injury (POI) detention. But he asserts that his administrative reports consistently describe him as a well-behaved prisoner who does not fit the requirements for Maximum Security detention. The brig psychiatrist began recommending his removal from Prevention of Injury months ago. These claims have not been publicly contested. In an Orwellian twist, the spokesman for the brig commander refused to explain the forced nudity “because to discuss the details would be a violation of Manning’s privacy.”

The administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates. Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate Wikileaks founder Julian Assange in a conspiracy, or both.

If Manning is guilty of a crime, let him be tried, convicted, and punished according to law. But his treatment must be consistent with the Constitution and the Bill of Rights. There is no excuse for his degrading and inhumane pretrial punishment. As the State Department’s P.J. Crowley put it recently, they are “counterproductive and stupid.” And yet Crowley has now been forced to resign for speaking the plain truth.

The Wikileaks disclosures have touched every corner of the world. Now the whole world watches America and observes what it does, not what it says.

President Obama was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency. He should not merely assert that Manning’s confinement is “appropriate and meet[s] our basic standards,” as he did recently. He should require the Pentagon publicly to document the grounds for its extraordinary actions—and immediately end those that cannot withstand the light of day.

Bruce Ackerman
Yale Law School
New Haven, Connecticut

Yochai Benkler
Harvard Law School
Cambridge, Massachusetts

Additional Signers: Jack Balkin, Kwame Anthony Appiah, Alexander M. Capron, Norman Dorsen, Michael W. Doyle, Randall Kennedy, Mitchell Lasser, Sanford Levinson, David Luban, Frank I. Michelman, Robert B. Reich, Kermit Roosevelt, Kim Scheppele, Alec Stone Sweet, Laurence H. Tribe, and more than 250 others.

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