Private Manning's Humiliation

APRIL 28, 2011
Bruce Ackerman and Yochai Benkler
http://www.nybooks.com/articles/archives/2011/apr/28/ private-mannings-humiliation/

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. A complete list of
signers has been posted on the blog balkinization.

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