The inhumane conditions of Bradley Manning’s detention

The recommendation this week was made to Maj. Gen. Michael Linnington, commander of the Military District of Washington, who is what is known as the convening authority in the case. The military justice system has important differences from the civilian system, so I spoke to Eugene R. Fidell, who teaches military justice at Yale Law School, to explain the basics.

We’ve now had the investigating officer as well as another officer this week recommend a court-martial to the Military District of Washington commander. What’s the next step?

A convening authority, which is a general officer, will decide whether to refer the case to a court-martial. There’s no designated time frame for this, but I think it will be in the next couple of weeks. A court-martial is a military criminal court that will have serious punishment powers. There will be a military judge presiding over it, who is a uniformed lawyer. There’s a prosecutor. There’s defense counsel. Unless Manning waives the jury, there will be a jury of at least five people.

Who makes up the jury?

The jury is selected by the convening authority. It’s not random selection. The general will select the members; it’s supposed to be a blue ribbon group. They are supposed to be the best qualified people with respect to education, experience, judicial temperament and so on. Because Manning is an enlisted man, he has a right to enlisted representation on the court. That means that at least one-third of the jury would have to be enlisted men or women.

In the civilian trial setting, there’s usually a lot of argument over who sits on the jury. How does that work in a court-martial?

The same thing happens. There’s an opportunity for the lawyers on both sides to question the jurors — who are actually called “members” in a court-martial — to determine whether they are capable of acting impartially. Each side has a right to challenge a member not only for cause, but also peremptorily, in other words for no reason.

To convict a defendant in a non-capital case requires only a two-thirds vote of the members. How the vote breaks down depends on how many members there are. The minimum is five, but there’s something called the numbers game that the lawyers on both sides are aware of. That is, that you want to use your right to challenge a member in order to manipulate the size of the court to maximize the chances of either conviction or acquittal, depending on your perspective. The number slightly tweaks the percentage. Two-thirds of five members is four, meaning the government would need 80 percent to convict. Two-thirds of six members is also four, which means the government would need only 66 percent to convict.

What about the judge — how is he or she different than a judge in a civilian case?

Once the case is referred to a court-martial, and a judge is assigned, the convening authority’s power becomes subject to review, and a judge sort of takes charge of the case. Until that happens — until the case is referred to trial — the convening authority really rules the roost.

The big difference as compared to a civilian federal judge is that a military judge doesn’t have life tenure. The judge in an Army court-martial is guaranteed tenure for only three years, which in my opinion is inadequate. Individually the judges may be perfectly independent, but in terms of the structural protections, the U.S. system is highly deficient in this area.

So the concern is that these judges might be worried about their later career and that affects how they hear cases?

Yeah, that’s the theory. Three years is shorter than any comparable criminal court in this country.

Turning to the trial itself, are the rules different than in a civilian court?

No, the rules are essentially the same as a federal district court. The rules of evidence are a virtual carbon copy, the rules of how people conduct themselves, and so on. Courts-martial are also open to the public, except to the extent that classified information is involved. Even then, only the bare minimum needed to protect the information is closed to the public.

If Manning is ultimately found guilty, how does the sentencing work? 

If there is a jury, the jury will do sentencing. Remember, he can waive the jury. But he can’t waive only on sentencing; he would have to waive it on guilt-or-innocence and sentencing together. If he waives the jury, the judge will decide both guilt or innocence and determine the sentence. If Manning goes with a jury, the sentence is determined by the jury. And anything in excess of 10 years has to be decided by a three-fourths vote. If it were a capital case — which it’s not — there would have to be 12 members of the jury and they would have to be unanimous.

What about appeals — can he appeal if he is found guilty?

The first level of review after a case is tried and there is a sentence is to the convening authority. He or she can disapprove the conviction, can cut the sentence and so forth. He or she can overturn the result of the trial. After the convening authority acts, it goes automatically to the Army Court of Criminal Appeals, which is made up of military officers who sit in northern Virginia. There are lawyers on both sides, and briefs are filed, and there may be oral argument. Then they will issue a decision. From there, assuming the case is affirmed, Manning would have the right to petition for discretionary review by the U.S. Court of Appeals for the Armed Forces. That’s a civilian court of five judges who sit in Washington, D.C., with proceedings open to the public. If they granted review, there would be an oral argument, and the case would result in a decision. If that court grants review, then the case becomes eligible for review by the Supreme Court. The Supreme Court can refuse to hear it, but at least Manning would have the right to ask the Supreme Court for review.

Pfc. Manning, you will remember, is the young soldier who is soon to be court-martialed for passing some 750,000 military and diplomatic documents, a large chunk of them classified, to the website WikiLeaks. Among those leaks, there was indeed some serious stuff about how Americans dealt with civilians in invaded countries. For instance, the documents revealed that the U.S. military, then the occupying force in Iraq, did little or nothing to prevent Iraqi authorities from torturing prisoners in a variety of gruesome ways, sometimes to death.

Then there was that gun-sight video — unclassified but buried in classified material — of an American Apache helicopter opening fire on a crowd on a Baghdad street, gunning down a dozen men, including two Reuters employees, and injuring more, including children. There were also those field reports about how jumpy American soldiers repeatedly shot down civilians at roadside checkpoints; about night raids gone wrong both in Iraq and Afghanistan; and a count of thousands of dead Iraqi civilians, a tally whose existence the U.S. military had previously denied possessing.

Together, these leaks and many others offered a composite portrait of military and political debacles in Iraq and Afghanistan whose grinding theme has been civilian casualties, a fact not much noted here in the U.S. A tiny number of low-ranking American soldiers have been held to account for rare instances of premeditated murder of civilians, but most of the troops who kill civilians in the midst of the chaos of war are not tried, much less convicted. We don’t talk about these cases a lot either. On the other hand, officials of all types make free with lusty condemnations of Bradley Manning, whose leaks are luridly credited with potential (though not actual) deaths.

Putting Lives in Danger

“[WikiLeaks] might already have on their hands the blood of some young soldier or that of an Afghan family,” said Admiral Mike Mullen, then Chairman of the Joint Chiefs of Staff, on the release of the Afghan War Logs in July 2010. This was, of course, the same Admiral Mullen who had endorsed a major escalation of the war in Afghanistan, which would lead to a tremendous “surge” in casualties among civilians and soldiers alike.  Here are counts — undoubtedly undercounts, in fact — of real Afghan corpses that, at least in part, resulted from the policy he supported: 2,412 in 2009, 2,777 in 2010, 1,462 in the first half 2011, according to the U.N. Assistance Mission to Afghanistan.  As far as anyone knows, here are the corpses that resulted from the release of those WikiLeaks documents: 0. (And don’t forget, the stalemate war with the Taliban has not budged in the period since that surge.)  Who, then, has blood on his hands, Pfc. Manning — or Admiral Mullen?

Of course the admiral is hardly alone. In fact, whole tabernacle choirs have joined in the condemnation of Manning and WikiLeaks for “causing” carnage, thanks to their disclosures.

Robert Gates, who served as secretary of defense under George W. Bush and then Barack Obama, also spoke sternly of Manning’s leaks, accusing him of “moral culpability.” He added, “And that’s where I think the verdict is ‘guilty’ on WikiLeaks. They have put this out without any regard whatsoever for the consequences.”

This was, of course, the same Robert Gates who pushed for escalation in Afghanistan in 2009 and, in March 2011, flew to the Kingdom of Bahrain to offer his own personal “reassurance of support” to a ruling monarchy already busy shooting and torturing nonviolent civilian protesters. So again, when it comes to blood and indifference to consequences, Bradley Manning — or Robert Gates?

Nor have such attitudes been confined to the military. Secretary of State Hillary Clinton accused Manning’s (alleged) leak of 250,000 diplomatic cables of being “an attack on the international community” that “puts people’s lives in danger, threatens our national security, and undermines our efforts to work with other countries to solve shared problems.”

As a senator, of course, she supported the invasion of Iraq in flagrant contravention of the U.N. Charter. She was subsequently a leading hawk when it came to escalating and expanding the Afghan War, and is now responsible for disbursing an annual $1.3 billion in military aid to Egypt’s ruling junta whose forces have repeatedly opened fire on nonviolent civilian protesters.  So who’s been attacking the international community and putting lives in danger, Bradley Manning — or Hillary Clinton?

Harold Koh, former Yale Law School dean, liberal lion and currently the State Department’s top legal adviser, has announced that the same leaked diplomatic cables “could place at risk the lives of countless innocent individuals — from journalists to human rights activists and bloggers to soldiers to individuals providing information to further peace and security.”

This is the same Harold Koh who, in March 2010, provided a tortured legal rationale for the Obama administration’s drone strikes in Pakistan, Yemenand Somalia, despite the inevitable and well-documented civilian casualties they cause.  So who is risking the lives of countless innocent individuals, Bradley Manning — or Harold Koh?

Much of the media have clambered aboard the bandwagon, blaming WikiLeaks and Manning for damage done by wars they once energetically cheered on.

In early 2011, to pick just one example from the ranks of journalism, New Yorker writer George Packer professed his horror that WikiLeaks had released a memo marked “secret/noforn” listing spots throughout the world of vital strategic or economic interest to the United States. Asked by radio host Brian Lehrer whether this disclosure had crossed a new line by making a gratuitous gift to terrorists, Packer replied with an appalled yes.

Now, among the “secrets” contained in this document are the facts that the Strait of Gibraltar is a vital shipping lane and that the Democratic Republic of the Congo is rich in minerals. Have we Americans become so infantilized that factoids of basic geography must be considered state secrets? (Maybe best not to answer that question.)  The “threat” of this document’s release has since been roundly debunked by various military intellectuals.

Nevertheless, Packer’s response was instructive.  Here was a typical liberal hawk, who had can-canned to the post-9/11 drumbeat of war as a therapeutic wake-up call from “the bland comforts of peace,” now affronted by WikiLeaks’ supposed recklessness.  Civilian casualties do not seem to have been on Packer’s mind when he supported the invasion of Iraq, nor has he written much about them since.

In an enthusiastic 2006 New Yorker essay on counterinsurgency warfare, for example, the very words “civilian casualties” never come up, despite their centrality to COIN theory, practice and history.  It is a fact that, as Operation Enduring Freedom shifted to counterinsurgency tactics in 2009, civilian casualties in Afghanistan skyrocketed.  So, for that matter, have American military casualties.  (More than half of U.S. military deaths in Afghanistan occurred in the past three years.)

Liberal hawks like Packer may consider WikiLeaks out of bounds, but really, who in these last years has been the most reckless, Bradley Manning — or George Packer and some of his pro-war colleagues at the New Yorker like Jeffrey Goldberg (who has since left for the Atlantic Monthly, where he’s been busily clearing a path for war with Iran) and editor David Remnick?

Centrist and liberal nonprofit think tanks have been no less selectively blind when it comes to civilian carnage. Liza Goitein, a lawyer at the liberal-minded Brennan Center at NYU Law School, has also taken out after Bradley Manning.  In the midst of an otherwise deft diagnosis of Washington’s compulsive urge to over-classify everything — the federal government classifies an amazing 77 million documents a year — she pauses just long enough to accuse Manning of “criminal recklessness” for putting civilians named in the Afghan War logs in peril — “a disclosure,” as she puts it, “that surely endangers their safety.”

It’s worth noting that, until the moment Goitein made this charge, not a single report or press release issued by the Brennan Center has ever so much as uttered a mention of civilian casualties caused by the U.S. military. The absence of civilian casualties is almost palpable in the work of the Brennan Center’s program in  “Liberty and National Security.” For example, this program’s 2011 report “Rethinking Radicalization,” which explored effective, lawful ways to prevent American Muslims from turning terrorist, makes not a single reference to the tens of thousands of well-documented civilian casualties caused by American military force in the Muslim world, which according to many scholars is the prime mover of terrorist blowback.  The report on how to combat the threat of Muslim terrorists, written by Pakistan-born Faiza Patel, does not, in fact, even contain the words “Iraq,” “Afghanistan,” “drone strike,” “Pakistan” or “civilian casualties.”

This is almost incredible, because terrorists themselves have freely confessed that what motivated their acts of wanton violence has been the damage done by foreign military occupation back home or simply in the Muslim world.  Asked by a federal judge why he tried to blow up Times Square with a car bomb in May 2010, Pakistani-American Faisal Shahzad answered that he was motivated by the civilian carnage the U.S. had caused in Iraq, Afghanistan and Pakistan. How could any report about “rethinking radicalization” fail to mention this?  Although the Brennan Center does much valuable work, Goitein’s selective finger-pointing on civilian casualties is emblematic of a blindness to war’s consequences widespread among American institutions.

American Military Whistleblowers

Knowledge may indeed have its risks, but how many civilian deaths can actually be traced to the WikiLeaks revelations?  How many military deaths?  To the best of anyone’s knowledge, not a single one.  After much huffing and puffing, the Pentagon has quietly denied — and then denied again — that there is any evidence at all of the Taliban targeting the Afghan civilians named in the leaked war logs.

In the end, the “grave risks” involved in the publication of the War Logs and of those State Department documents have been wildly exaggerated.  Embarrassment, yes. A look inside two grim wars and the workings of imperial diplomacy, yes. Blood, no.

On the other hand, the grave risks that were hidden in those leaked documents, as well as in all the other government distortions, cover-ups and lies of the past decade, have been graphically illustrated in aortal red. The civilian carnage caused by our rush to war in Iraq and by our deeply entrenched stalemate of a war in Afghanistan (and the Pakistani tribal borderlands) is not speculative or theoretical but all-too real.

And yet no one anywhere has been held to much account: not in the political class, not in the military, not in the think tanks, not among the scholars, nor the media.  Only one individual, it seems, will pay, even if he actually spilled none of the blood. Our foreign policy elites seem to think Bradley Manning is well-cast for the role of fall guy and scapegoat. This is an injustice.

Someday, it will be clearer to Americans that Pfc. Manning has joined the ranks of great American military whistleblowers like Dan Ellsberg (who was first in his class at Marine officer training school); Vietnam War infantryman Ron Ridenhour, who blew the whistle on the My Lai massacre; and the sailors and marines who, in 1777, reported the torture of British captives by their politically connected commanding officer. These servicemen, too, were vilified in their times. Today, we honor them, as someday Pfc. Manning will be honored.

Here (.pdf), via Gerstein, is the Public Affairs Office media coverage summary that refers to “1,045 social media conversations about the hearing.” It also notes that “the VOCUS media site listed most of the coverage of Manning as negative, the majority of the coverage about the hearing remains balanced and factual.”

VOCUS, which is based in a Maryland suburb of Washington, offers its customers the ability to “monitor social conversations, mentions and trends,” and:

• Identify influencers. Rank top tweeters and bloggers by the number of followers, retweets, blog comments, and activity volume, so you can see who you need to be talking to.

• Cover more blog posts. Vocus monitors more than 20 million of the most influential blogs. Best of all, we filter out aggregator sites, so you don’t get false or duplicated results.

• Track sentiment and tone. Mentions are analyzed to gauge the feelings of bloggers, tweeters and readers – giving you insight far beyond the lead story.

• Monitor Twitter in near-real time. Find out what people are saying and analyze all the chatter so you can engage within minutes. Vocus makes it easy to track retweets and identify the originating tweet.

Here are a couple sample screenshots of VOCUS software centering on Twitter. I’ve asked the Army how exactly it uses VOCUS and I will update this post if I hear back.

UPDATE 1/11/12: The Army send along this statement in response to my inquiry, which does not shed much light on how it uses VOCUS:

The Army employs traditional and contemporary public relations methods with which to communicate with its varied publics. Our news-gathering and assessment tools are in keeping with modern practices, and are used to determine the level at which we engage with the public to inform our vast constituencies. The Politico report reflects the Army’s connection with the public, and our transparency in such matters.

An Al Qaeda propaganda video was shown. The video, with subtitles, featured a figurehead of the organization discussing the released information, like the State Department cables. The figurehead said the cables revealed “foreign dependencies.” He said something about relying on Allah for actions against the United States and then said before taking actions jihadists should rely on the “wide range of resources on the Internet” now.

Fein asserted that AQAP is “urging followers to collect and archive WikiLeaks information.” Manning “knowingly gave intelligence through WikiLeaks to the enemy.” He “wantonly caused the release of this information.” It was “not just good for declared enemies” but also accessible to “all other enemies with Internet access.”

Manning, Fein added, released over 700,000 documents that were on SIPRnet “during a time of war and while deployed.” He was “never authorized to make classification decisions to affect the national security of the United States.” He was given “unfettered access” to the information and “multiple enemies received” this information.

Now, it is clear: the effect of Manning’s prosecution has the potential to criminalize national security journalism. Not only would successfully putting Manning in prison for life without parole make an example for other soldiers to deter any others from responding to their moral conscience if they came across files that contained evidence of possible war crimes, but this would make it possible for the government to go after journalists who cover documents from the military or security industrial-complex.

This also cements the fact that WikiLeaks is viewed as a terrorist organization by the US government (or at least one that aids terrorist organizations through the publication of classified information). Anyone who releases information to WikiLeaks can count on being pursued by the government and, when caught, charged with “aiding the enemy”—terrorists, because they have access to the Internet and could read material that was once-secret.

Unsurprisingly, the defense’s closing argument given by David Coombs sharply contrasted with this rather incendiary condemnation of Manning. Coombs presented Manning as a “young and idealistic” man with a “strong moral compass.”

“Obviously, in your early twenties, you believe you can change the world,” Coombs stated. “In your early twenties, you believe you can make a difference and that’s a good thing. In your early twenties, when your president says, ‘Yes We Can,’ you actually believe that.”

He wholly condemned the government’s overreaction to the release of documents by WikiLeaks and their insistence that the documents have done “extreme harm” and so Manning must pay with his life.

“What was the result of these leaks?” Coombs asked. It would be possible to know if the original classification authorities (OCAs) had been in court to testify. They were not. They instead submitted “unsworn statements” indicating “relevant information could cause harm.”

Coombs said the OCAs were reinforcing the “Chicken Little response of the US government” that began with Pentagon spokesperson Geoff Morrell going around saying, “The sky is falling, the sky is falling,” and continues most recently with Secretary of State Hillary Clinton saying “the sky is falling, the sky is falling.”

“The sky is not falling and the sky will not fall,” declared Coombs.

Moments before calling out the OCAs, he spoke of the profound suffering Manning had been experiencing as a member of the military who had gender identity disorder. He cited an email to Sgt. Paul Adkins, who escaped testifying during the hearing by invoking his right to not incriminate himself.

All throughout the hearing this email was frequently referenced because it included a photo of Manning dressed up as a woman. For the first time, Coombs read what Manning had written to Adkins.

“This is my problem. I’ve had signs of it for a very long time. I’ve been trying very, very hard to get rid of it.” It is not going away. It is haunting me more and more as I get older. Now the consequences are getting harder. “I am not sure what to do with it. It’s destroying my ties with family. It is preventing me from developing as a person. It’s the cause of my pain and confusion. It makes the most basic things in my life very difficult. He said the only help that seems available is severe punishment. “I have a fear of getting caught” and have gone to “great lengths to conceal my disorder.”

The email continued: “It is difficult to sleep and impossible to have conversations. It makes “my entire life feel like a bad dream that won’t end. “I don’t know what to do. I don’t know what will happen to me. But at this point I feel like I am not here anymore. Signed, Bradley Manning.”

Coombs appropriately concluded by paraphrasing a quote many attribute to the late Justice Louis Brandeis, “Sunlight has always been the best disinfectant.”

He quoted Martin Luther King Jr., a flourish that surely pleased supporters of Manning:

An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.

“[A] hallmark of our democracy is the ability of our government to be open with its public,” Coombs stated. “History will ultimately judge my client.”

This was the first clear instance during the entire hearing that Coombs conceded that Manning had, in fact, released the information to WikiLeaks, but the government should not get away with prosecuting Manning because he was simply doing what he thought to be just. And there is no justification for persecuting someone, who sought to raise the public’s awareness of gross injustices, and move the government to effectively resolve and end an era of corruption and lawlessness under President George W. Bush’s administration.